2002 Conflicts exam
Question 1
Part (a)
D applies for stay to BC action.
D served ex juris under Rule 13(1).
D must refer to Rule 14(6.1) when applying for an order declining J.
D must suggest alternative forum – suggests Thailand
Jurisdiction simpliciter
· Do the facts as plead disclose a COA (Rule 14(6)) – assume pleadings in this case plead all the essential elements of the breach of contract.
Has there been compliance with Rule 13(1)?
· Yes – delivered in the J.
Is compliance with Rule 13(1) enough?
· Some law says mere compliance is enough.
· Rule 13(1) sets out scenarios that are prima facie a RASC (Strukoff).
o If fit within one of the sub-rules then will have a RASC i.e. the sub rules are examples of RASC (Spar).
· Some law says mere compliance is not enough
o Satisfaction of Rule 13(1) does not establish a RASC, or even raise a rebuttable presumption of a RASC (UniNet),
· I will assume mere compliance is not enough.
Was there a RASC for JS?
· P must show RASC between the D and the J or between the COA and the J.
· Is a connection with the COA and the J
o Bags were delivered here.
o Bags broke in BC.
o Loss suffered in BC.
Conclusion: There is a RASC giving JS.
Forum Conveniens.
Served ex juris so P has burden (Bushell) of proving FC i.e. that the domestic forum is clearly (Westec, Ingenium) more appropriate.
Three step process (Westec):
- Are there parallel proceedings? Don’t be too technical, be generous and flexible. Proceedings / relief sought do not need to be identical
· Yes there are parallel proceedings.
- Is the other forum an appropriate forum?
· Yes, D is there, COL and CFC referred to Thailand.
- Is there an advantage that the P would lose if the stay was granted?
Balancing between the two J’s is done at this third stage, and only if the domestic forum is sufficiently more appropriate such that granting the stay will deprive the P and advantage, will the stay be refused:
· P would lose chance to litigate at home.
· Thai law would apply in the action is heard in Thailand b/c of the expert evidence of the Electronic commerce act – but no evidence in question that Thai law is particularly harsh.
· Burden is on P, and P must show disadvantage!
· Not clear if the CFC and the CLC is even binding - were they incorporated into the K?
· CFC – give little weight to it because is not exclusive. Is the clause valid: does the nominated J recognise CFCs, not sure if that is the case. Does the clause apply to the facts of the case – since this case considers the action by Plastics which is action on unpaid invoice, it is relevant that Plastics was going to litigate anywhere to recover such money.
· Choice of law clause not determinative (Westec) – BC can apply Thai law.
· Place of formation of contract not determinative (Westec) – But still argue it. Here it was on the internet à Electronic communications so recipient rule applies. Advert on web = invitation to treat, P clicking “buy” is the offer, D sending confirmation is the acceptance, acceptance received in BC, so under the recipient rule the contract is formed in BC.
· All else being equal, the action that was started first will be allowed to proceed (Westec), but this should not decide the matter where the actions were started essentially simultaneously (Westec) – here the actions were essentially simultaneous.
· If the other forum has accepted J, then comity suggests that should grant a domestic stay (Ingenium) – but here they do not have anything equivalent to FC, so not much comity required.
· Evidence of damage will be in BC.
I would stay the BC action b/c I do not think that BC is clearly more appropriate.
Part (b)
Plastics will likely get default judgement against GP in Thailand
If the BC court said that BC was clearly more appropriate, then GP will have a strong argument that BC should not RAEFJ from Thailand on the invoice.
Could try apply for a stay in Thailand, but unlikely to succeed.
GP could consider an ASI, but many hurdles to this:
· No stay applied for in Thailand.
· In personum remedy which Thailand will not enforce.
GP will get default judgement against Plastics in BC
But this judgement will be useless b/c Plastics has no business in BC, and so recovery impossible.
Conclusion:
I would say that GP should litigate in Thailand using Thai law – this is a basic breach of contract case I expect that Thai law would provide a remedy.
Question 2
Similar to the case of Currie v MacDonalds.
She was “made a member” of the class action, but never knew of its existence.
Currie goes through an analysis of whether the notice was adequate i.e. they did not just ask whether that individual P had notice.
So if notice is adequate, then will be bound, even if you yourself did not know about it.
Here 70% of class members would have gotten notice – is that enough?
Policy counts against class actions all over the place on the same subject matter – I would say 70% is enough notice.
Question 3
Assume the marriage between P and E was valid, apart from the issue of P’s single status.
Was the marriage between A and P valid?
P says that it was not valid for lack of registration in Mexico.
Assume that apart from this, the marriage was valid.
The test is whether we would recognise the marriage as valid.
Consider the effect of the lack of registration
Registration is a question of formal validity of a marriage.
Marriage will only be recognised if formally and essentially valid.
3 chances to uphold validity à
1. LLCeleb: domesticate the facts.
· Say not valid in Mexico b/c was not registered.
2. Common law agreement to be married is ok if compliance with the local law either impossible or clearly not reasonable. Circumstances are key: if you tried to comply with LLCeleb, then CL marriage not valid.
· Cannot argue this option b/c they tried to comply with Mexican law, and so compliance could reasonably be expected.
3. Renvoi: Look to the whole law (incl. COLR) of the place of the marriage. [Also valid for FV of wills].
· Not sure what the COLR is for formal validity of marriage in Mexico.
· If LLCeleb then does not help, b/c not registered in Mexico.
· If domicile, then depends on the rules in Brazil, if Brazil does not need registration then will be OK, if the other requirements for FV for Brazil were complied with.
· If nationality, then depends on the rules in SA and Portugal – if neither SA nor Portugal require registration, then will be OK, if the other requirements for FV in these countries were complied with
à I would check the two options immediately above and argue either or both of them if that works.
Assume that marriage between P and A was invalid at the time it occurred, was it cured by the legislation?
E argues that Mexico “had just” passed legislation validating marriages since 1895 that had not complied with the registration requirements.
When was this legislation enacted – was it before the marriage between P and E? If it was after the marriage, then the marriage between P and E would be valid, assuming the divorce was valid.
Was the divorce between A and P in Nevada valid?
E argued that P was still domiciled in Brazil.
The question is whether we as BC would recognise the divorce.
We will recognise divorces recognised by the domicile of the parties (Vervaeke) – brazil does not recognise the divorce, but we must consider the now current domicile under this rule.
They have not arrived in indo yet, so P’s domicile is either still Brazil, or became Nevada.
Decide if P became domiciled in Nevada according to our definition (???) of domicile – need intention to stay – that was not the case, so we say that she was still domiciled in Brazil, so her domicile at the time of the divorce does not recognise the divorce, so we will not recognise the divorce under the rule this paragraph started with.
We will recognise the divorce if parties had a RASC to the J that gave the divorce (Indica).
This claim seems tenuous – they just went there for the divorce.
We will recognize the divorce if it was obtained in domicile of the parties (Vervaeke). But this was impossible in this case.
None of the other rules seem viable – but it is against our public policy to say that they could not get a divorce – and if Brazil does not recognise or grant divorces, then they would be destined to be married forever, that is against public policy in BC – we would not want to subject people to a live of pain. Divorce Act s.22 – will recognise divorce from J if one party lived there for the 1 year preceding. But this is a big requirement, can’t expect parties to leave Brazil for one whole year just to get divorced. So make a new rule for divorce analogous to the common law rule for marriage. If you agree to get divorced, and make significant effort to achieve that goal, then you are divorced.
So I find that the parties were validly divorced.
Assume that P and E were validly married in Ireland, so validly married.
Question 4:
Proper law of the contract is England – express CLC.
LLC = Florida.
Part (a)
J&J want the contract to be valid so that they can sue for damages.
Realistic options for places to sue = BC, Florida, England
Formal validity of the contract seems to be the main issue. K formally valid if valid under either LLC or proper law of the K (Greenshields trial judge). This rule should be considered when deciding where to sue.
I would pick BC.
Why not Florida.
Florida will likely be quite unhappy that the formal requirements were not complied with and such formal requirements were designed to protect people in Jessica’s position. So I doubt Florida would enforce the contract given that LLC was not complied with. It is possible that Florida would look to the law of England for FV, but since England has a policy against such contracts, they may have previously had strict FV requirements.
Also Florida puts a limit on the damages.
Why not England
England clearly has a policy against such contracts. Although the negotiations in this case were before the legislation, it is not clear whether the refusal to enforce such contracts under English law applies only to contracts negotiated in breach of the statute, or negotiations whenever made. But clearly against English public policy, so they would either refuse to enforce outright, or would apply LLC for FV and not enforce it on that basis.
Part (b)
Assume BC has and takes J.
If Jessica pleads and proves English law, would that defeat the contract?
Contract must have formal validity.
K formally valid if valid under either LLC or proper law of the K (Greenshields trial judge).
Clearly not valid under LLC.
Unclear if valid under proper law of the K – what FV requirements did England have at that time?
Court have a tendency to want to find contracts formally valid – so I assuming that Jessica does not plead and prove English law on FV of such K’s at the time this one was formed, take the law of England to be the same as BC, BC had no formal requirements, so say contract valid under PLOK in so far as FV is concerned.
English law prohibits negotiation of such contracts
The K here was negotiated before the English statute came into force (assume statute not retroactive – is penal type legislation, so likely not retroactive).
So offence making provisions likely not applicable.
Even if they are applicable, they would be foreign penal law.
“Penal law” is not limited to criminal law, but is “a proceeding in the nature of a suit by the state whose law has been infringed” (Huntington).
Since an offence is created, that would be penal law and we will not enforce that law even if it is the PLOK.
English law says that “no action shall be bought”
Not clear if “no action” shall be bought on contracts flowing from prohibited negotiations, or from any negotiations on surrogacy.
But “no action shall be bought” indicates a procedural rule, not a substantive rule that “extinguishes” the right. Here the right exists, but the action cannot be bought.
So BC would not apply foreign procedural law, and so would not bar the action.
Would the contract be void in BC for public policy reasons.
Require a high degree of repugnancy (Society of Lloyd’s, Beals).
For breach of forum PP must be contrary to our basic morality or standards of justice (Beals).
Surrogacy is not a new issue. BC and Canada have turned their mind to the issue and have not banned it – no laws passed yet. So I would say that it is not contrary to the public policy to the extent needed.