Conflict of Laws .net

Australian commentators have long speculated about whether the federal Constitution contains any rule that would resolve a direct conflict between the statute law of two States. Thus far, the High Court has defused potential conflicts without the need for such a constitutional rule. In John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, the potential conflict between ACT and NSW law was resolved by a common law choice of law rule; and in Sweedman v Transport Accident Commission (2006) 226 CLR 362 a potential conflict between NSW and Victorian law was resolved by a process of statutory construction.

Most recently, in Betfair Pty Limited v Western Australia [2008] HCA 11, the High Court resolved a potential conflict between the laws of Tasmania and Western Australia by striking down the Western Australian statute because it infringed s 92 of the Constitution (which prevents protectionist burdens on interstate trade and commerce). The Court noted in passing that its conclusion about s 92 made it “unnecessary to consider whether [the WA law] is invalid by reason of the alleged direct conflict between it and  … the Tasmanian Act. This is not the occasion to consider what may be the controlling constitutional principles were there demonstrated to be such a clash of State legislation.” Since no such occasion has yet arisen in the 108 years of Australian federation, the direct conflict between State laws is perhaps a problem of greater theoretical than practical importance.

The High Court of Australia has recently addressed the Hague Convention on the Civil Aspects of International Child Abduction: MW v Director-General, Department of Community Services [2008] HCA 12. In a 3:2 decision, the Court considered that the Director-General (as State Central Authority) had not sufficiently established that the removal of a child from New Zealand to Australia was wrongful, and thus the Family Court of Australia ought not to have made an order for the return of the child.

In Australia, the Hague Convention does not apply of its own force, but is instead implemented by the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986(Cth). The case turned on reg 16(1A)(c) of the Regulations, which provides that “the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia”. As such, the High Court was required to address difficult factual and legal questions relating to the child’s circumstances in New Zealand. At least in the case of New Zealand law, that task was eased in Australia by the Evidence and Procedure (New Zealand) Act 1994 (Cth).

James McComish, my Australian Conflict of Laws.net co-editor, has recently had published an article entitled “Pleading and Proving Foreign Law in Australia” in volume 31(2) of the Melbourne University Law Review. The abstract reads:

Foreign law lies at the heart of private international law. After all, a true conflict of law cannot be resolved unless and until the content of foreign law is established. Despite this, the pleading and proof of foreign law remain among the most under-explored topics in Australian private international law. In light of the High Court of Australia’s significant change of direction on choice of law since 2000, most notably in cases such as John Pfeiffer Pty Ltd v Rogerson, Regie Nationale des Usines Renault SA v Zhang and Neilson v Overseas Projects Corporation of Victoria Ltd, it is all the more important to answer some of the basic questions about the pleading and proof of foreign law. Who pleads foreign law? What law do they plead? Are they obliged to do so? How do they prove its content? When can local law be applied in the place of foreign law? This article addresses these and related questions with a particular focus on Australian law as it has developed since 2000. It concludes that Australian courts take a more robust and pragmatic approach to these issues than might be supposed. In particular, the so-called presumption of identity is a label that masks a much richer and more complex reality.

The article’s full citation is (2007) 31(2) Melbourne University Law Review 400.

We are pleased to announce

The CONFLICT OF LAWS .NET Essay Competition in Private International Law
Sponsored by Clifford Chance LLP and Hart Publishing

The Competition is open to any student of a higher education institution anywhere in the world, writing in English on any aspect of private international law.

First prize: $500, plus $300 worth of Hart Publishing books.
Second prize: $250, plus $150 of Hart Publishing books.
Third prize: $150, plus $100 of Hart Publishing books.
(All figures are in US dollars)

The best essays will also be submitted for consideration to the Journal of Private International Law.

Deadline: 1 September 2008 at 6pm GMT. All entries, and any questions, should be submitted by email to essay@conflictoflaws.net.

For more information, including the rules on eligibility, format and length, please see the Essay Competition homepage (http://www.conflictoflaws.net/essay-competition).

Dan Jerker B Svantesson (Bond University) has written a short article on “Conflict of Laws Issues Associated with an Action for Interference with Privacy” in the current issue of Computer Law and Security Report (C.L.S.R. 2007, 23(6), 523-528). The abstract reads:

Examines Australian conflict of laws issues associated with actions for interference with privacy. Considers developments indicating a movement towards the recognition of such actions in Australia. Discusses the potential impact of actions for interference on internet conduct and the application to such actions of Australian rules of jurisdiction and choice of law, including the three key concepts relating to: (1) where the cause of action is committed; (2) where the damage is suffered; and (3) what is the “place of wrong”. Notes the issue of forum non conveniens.

Available to CLSR subscribers (via Westlaw.)

In a recent case, the Federal Court of Australia held that a US-incorporated corporation which had been served in the US, and which had filed a conditional appearance only to challenge the Court’s jurisdiction, was not required to produce documents pursuant to a notice to produce (similar to a subpoena). Jacobson J said (at [10]): ‘I do not consider that at this stage of the proceedings in which the jurisdiction is under challenge, the applicant can invoke the compulsory processes of the Court.’ See Armacel Pty Limited v Smurfit Stone Container Corporation [2007] FCA 1928.

In Australia, the applicable law in negligence cases is the law of the place of the tort: Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10. On a number of occasions in recent years, Australian courts have dealt with difficult choice of law issues arising out of negligent omissions, asbestos-related injuries and overseas plaintiffs: see, eg, James Hardie Industries v Hall (1998) 43 NSWLR 554; [1998] NSWSC 434; James Hardie Industries v Grigor (1998) 45 NSWLR 20; [1998] NSWSC 266; Amaca Pty Ltd v Frost [2006] NSWCA 173.

In Puttick v Fletcher Challenge Forests Pty Ltd [2007] VSCA 264, the Victorian Court of Appeal recently considered the related question of whether Victoria was forum non conveniens for an action in which the Victorian-resident plaintiff sued the New Zealand-incorporated holding company, Fletcher, of his former New Zealand-incorporated employer for negligence in relation to his exposure to asbestos in factories in Belgium and Malaysia which the plaintiff visited at the direction of his employer. At the relevant time, the plaintiff was resident in New Zealand and was employed there.

In accordance with the High Court’s decisions in Zhang and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, a stay of proceedings on the grounds of forum non conveniens would only be granted if Victoria was a ‘clearly inappropriate forum’. This is a more difficult test to satisfy than showing that another forum is a ‘more appropriate forum’: cf Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460. The first instance judge concluded that many witnesses and relevant documents would be located in New Zealand, but that this, of itself, did not mean that Victoria was a clearly inappropriate forum. However, his Honour then concluded that the applicable law was that of New Zealand and that this, taken with the other factors, meant that Victoria was a clearly inappropriate forum. The key issue on appeal was whether New Zealand law applied.

A 2:1 majority of the Court of Appeal (Warren CJ and Chernov JA; Maxwell P dissenting) agreed with the trial judge that New Zealand law did apply and, accordingly, that Victoria was forum non conveniens. The negligence asserted by the plaintiff was that Fletcher: (1) caused or permitted him to be exposed to asbestos in Belgium and Malaysia; (2) failed to provide and maintain a safe system of work for him whilst he was working in Belgium or Malaysia; and (3) failed to warn or instruct him or his employer about the need for protective clothing and equipment whilst working with or exposed to asbestos dust.

The majority considered that each of these acts occurred in New Zealand, there being no act or failure to act in Belgium or Malaysia to which the plaintiff could point which constituted an alleged wrong. Any action which Fletcher should have taken (eg to give further warnings or instructions) would have been taken in New Zealand, and the instructions to visit Belgium and Malaysia were given by the employer and received by the plaintiff in New Zealand.

In contrast, the minority characterised the plaintiff’s complaint as having been exposed to unsafe workplaces in Malaysia and Belgium. Fletcher’s conduct in New Zealand created the risk of harm to the plaintiff, but that risk did not assume significance (i.e. the negligent conduct was not completed) until the plaintiff was exposed, without warning or protection, to asbestos in Malaysia and Belgium.

Both the majority and the minority sought to argue that their respective positions were supported by the cases mentioned above in which Australian courts have previously considered similar issues. Ultimately, cases such as Puttick exemplify the difficulties associated with locating the place of the tort in cases of negligent omission. It remains to be seen whether the plaintiff will seek special leave to appeal this decision to the High Court.

In Australia, as in England, foreign law is treated as a matter of fact, not law, and its content must therefore be pleaded and proved if a party wishes to rely on it. On the other hand, the principle traditionally known as the “presumption of similarity” (or “presumption identity”) means that foreign law will be assumed to be the same as local law unless the contrary is demonstrated. For this reason, local law is generally applied by default even in cases otherwise governed by foreign law, as it is usually in neither party’s interests to go to the trouble of researching and proving foreign law. However, in rare cases Australian judges have declined to apply Australian law by default, the leading example being Damberg v Damberg (2001) 52 NSWLR 492.

Now, in National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd [2007] FCA 1625 (26 October 2007), Graham J of the Federal Court of Australia doubted the applicability of the New South Wales law of defamation to a case otherwise governed by Hong Kong and mainland Chinese law, and denied the applicants relief because they failed to prove the relevant foreign law. The case concerned (among other things) an allegedly defamatory email read by recipients in Hong Kong and mainland China. His Honour observed that:

“In making these findings [about the allegedly defamatory] email I have assumed that the defamation law in the Special Administrative Region of Hong Kong and in the remainder of the People’s Republic of China is the same as it is New South Wales. However, as I said [earlier in the judgment, after discussing Damberg v Damberg and other cases on the presumption of identity]:

‘… the general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law is not inflexible. Where the law of the forum is governed by a statute and the law within Australia is itself lacking in uniformity, I doubt whether it could be presumed that the defamation law in China, including the Special Administrative Region of Hong Kong, is the same as it is in New South Wales.’

In the absence of evidence as to the relevant defamation law in the Special Administrative Region of Hong Kong and in the remainder of the People’s Republic of China or at least that part where [the recipient] was located at the time when he received the … email, I do not consider that any award of damages should be made referable to the transmission of the … email to [the recipients in Hong Kong and China]. The relevant defamation law (if any) has not been proven.”

While the default application of Australian law is usually just and convenient, there are certain areas of law in which this default application should be overridden because it would be unfair or anomalous, especially so when local law is idiosyncratic. Although some judges have applied Australian defamation law by default in other cases governed by foreign law, defamation is an area of law which differs markedly around the world, and until the recent uniform Defamation Acts, the law of NSW was particularly idiosyncratic even in comparison with the other Australian States. Thus, it could hardly be said that the “presumption of similarity” was a realistic or fair approximation of the actual content of foreign law in this case.

Note: Although the common law “place of publication” choice of law rule continues to apply in Australia regarding defamatory material published overseas (see Dow Jones v Gutnick), the uniform Defamation Acts altered the rule applicable to material published within Australia so as to apply the law of the “Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection”.

Assignments of choses in action can raise difficult choice of law issues, and readers may be interested in two decisions of the Federal Court of Australia that shed some light on this area.

In Salfinger v Niugini Mining (Australia) Pty Ltd (No. 3) [2007] FCA 1532 (8 October 2007), Heerey J considered the validity of a purported assignment of causes of action arising under Australian law pursuant to deeds of assignment governed by Canadian law. His Honour held that:

“Whether the causes of action in tort or equity are assignable is to be determined by the law under which the right or cause of action was created … In consequence, although both assignments in the present case included ‘governing law’ clauses, and were purportedly entered into in Canada, those clauses are not relevant in deciding whether the causes of action in question are assignable. That question is to be decided by the law of the place where the causes of action arose. As the causes of action relied on arose in Australia, Australian law is applicable.”

There is an interesting parallel between the recent decision and the earlier Full Federal Court case of Pacific Brands Sport Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395; [2006] FCAFC 40, which concerned the assignment of contractual rights (not causes of action). There, the court was content to proceed on the assumption (without needing to decide) that such assignments are to be governed by the proper law of the underlying contract, rather than the proper law of the contract of assignment.

The Chair for Civil Law, Private International Law and Comparative Law at the Europa-Universität Viadrina Frankfurt (Oder) has created under the direction of Prof. Dr. Dieter Martiny a very useful website (in German/English) which contains links on comparative law, private international law, uniform law as well as European Union institutions, case law and Community legislation. Further, it contains links to institutions, case law, legislation, universities, legal journals, lawyers, legal organisations and libraries of most Member States as well as the US, Australia, Israel, Norway, Switzerland and the Ukraine.

The link directory can be found here.

(Many thanks to Dr. Oliver L. Knöfel (Hamburg) for the tip-off.)

Further to the post in May this year regarding P St J Smart’s article which contended that an Australian court should not enforce a “judgment on a judgment”, Ian Molloy has written a follow-up article in the latest Australian Law Journal (2007 vol 81, p 760) highlighting two cases which adopt this view.  The cases are the Supreme Court of New South Wales decision in Taylor v McGiffen (unreported, Supreme Court of New South Wales, 15 July 1985) and the National Court of Justice of Papua New Guinea decision in WorkCover Authority (NSW) v Placer (PNG) Exploration Ltd [2006] PGNC 47.  Ian Molloy’s article is available on the internet to Lawbook Online subscribers.

An interesting divided judgment of the Full Court of the Federal Court of Australia has considered the non-justiciability of political questions and the decision in Buttes Gas [1982] AC 888.

The appellant was a PNG national who sought joinder as a party to an Australian native title claim over an area in the Torres Strait abutting PNG. The respondents successfully opposed that joinder at first instance because of a concern that the appellant would use the proceedings to agitate political matters concerning the maritime boundaries treaty between Australia and PNG. Significantly, the Australian government did not oppose the joinder so long as those political questions were not raised.

Gyles J, with whom Sundberg J agreed, allowed the appeal and held that the appellant should have been joined. Gyles J held that:

The appellant does not need to put any argument based upon the [political issues] to establish his interests for the purposes of the case. The docket judge can control the proceeding to prevent truly irrelevant or inappropriate arguments or material being advanced by a party. Counsel for the Commonwealth indicated that there should be no problem if the case is approached along those lines. The Commonwealth should be in a good position to judge that situation. … An appropriate term could have been constructed imposing conditions upon a grant of leave to be joined.

Kiefel J dissented. Her Honour summarised the non-justiciability principle as being that “negotiations and agreements between Australia and another country are not to be the subject of judicial determination for the reason that they might cause embarrassment and affect relations between the countries.” Although the Australian government was not actually “embarrassed” by the potential joinder, her Honour considered that “it is the nature of the question for the Court which renders it non-justiciable”, and not the presence of actual embarrassment.

Gamogab v Akiba [2007] FCAFC 74 (18 July 2007)

The Supreme Court of Victoria has recently addressed the choice of law implications of claims for contribution within the Australian federal context. The decision will be of particular interest to UK readers. The Victorian contribution statute under consideration, Part IV of the Wrongs Act 1958 (Vic), is materially identical to the Civil Liability (Contribution) Act 1978 (UK), but the Court declined to follow the view of the UK courts regarding the choice of law consequences of the statute.

The case concerned a claim for contribution brought in Victoria by Fluor Australia Pty Ltd against ASC Engineering Pty Ltd, relating to the breach of a contract governed by the law of Western Australia. In Victoria, as in the UK, the statutory right to contribution covers all forms of liability. In contrast, in WA (and all Australian jurisdictions except Victoria) contribution is governed by equitable principles in conjunction with a limited and gap-filling statutory right to contribution between tortfeasors.

Section 23B(6) of the Victorian Act provides that:

References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against that person in Victoria by or on behalf of the person who suffered the damage and it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a place outside Victoria.

Fluor argued that this constituted a statutory choice of law rule in favour of the Victorian lex fori, notwithstanding that common law rules of private international law might have directed the application of WA law. This reasoning was said to be supported by a series of decisions on the equivalent section of the UK Act. In each of those cases, English courts applied the UK Act to claims for contribution regardless of whether those claims would have been governed by English law according to the common law choice of law rule for contribution claims.

Bongiorno J declined to follow this view, holding that it would “encourage forum shopping to the detriment of the whole Australian legal system [and] would be antipathetic to the federal compact itself, with obvious consequences for state sovereignty and the integrity of individual state legal systems.” Rather, common law choice of law rules for contribution applied. Section 23B(6) of the Victorian Act was held to be merely “facultative”, its role being to confirm that if the common law choice of law rules for contribution directed the application of the Act, the fact that the “underlying liability” of the person from whom contribution is sought to the person who suffered the loss would be governed by the law of another jurisdiction would not preclude application of the Act.

Although there is uncertainty in Australia as to the applicable common law choice of law rule – both a delictual analysis (favouring the contribution law of the place of commission of the wrong by the person from whom contribution is sought) and a restitutionary analysis (favouring the contribution law of the place with the closest connection to the contribution claim) having been previously posited by Australian courts –his Honour considered that whichever rule applied, the Victorian Act did not apply to Fluor’s claim against ASCE. Consequently, his Honour did not express a preference for either possible rule and Australian lawyers are therefore no closer to knowing the applicable common law rule for choice of law in contribution claims.

Fluor Australia Pty Ltd v ASC Engineering Pty Ltd [2007] VSC 262 (17 July 2007)

(Note: Both Perry Herzfeld and I were involved in this case while at Allens Arthur Robinson.)

The decision on appeal of the Full Court of the Federal Court in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558; [2007] FCAFC 43 has now been reported in the authorised Federal Court Reports (available online to subscribers to Lawbook).

The case arose out of a claim by Spirits and a related company in relation to the ownership of certain registered trademarks, including marks incorporating the words ‘Stolichnaya’ and ‘Moskovskaya’.  FKP, as the second respondent to the claim, filed a cross-claim against Spirits and the first respondent seeking the transfer or cancellation of registration of the disputed trademarks.  (Related proceedings have been brought in other countries.)  FKP is an economic entity existing under the laws of the Russian Federation.  Another such entity, Federal Public Unitary Enterprise External Economic Union Sojuzplodoimport (FGUP VO), was joined as a second cross-claimant.

FKP and FGUP alleged that, prior to 1992, the disputed trade marks were owned by an entity existing under the laws of the former Soviet Union and that, following the dissolution of the former Soviet Union in 1992, the marks were wrongfully appropriated by certain individuals and ultimately came to be held by Spirits.   Spirits sought discovery of certain documents from the Russian Federation pursuant to the provision of the Federal Court Rules permitting the Court in its discretion to order discovery from non-parties.  The trial judge concluded that the Russian Federation was the ‘real’ party to the cross-claim brought by FKP and FGUP, and ordered that it should make the discovery sought and that, unless it did so, the cross-claim would be stayed.

The Full Court set aside the trial judge’s orders.  The Court noted that it had been conceded (and the Court apparently agreed with the view) that the trial judge had power to make an order for discovery against a non-party foreign state, even if the foreign state was not the ‘real’ party to the litigation.  However, the Court said that the trial judge did not ‘act with the caution that the principled exercise of the discretion requires where there is an intrusion upon the sovereignty of a foreign state.’  Even though the intrusion upon the sovereignty of the Russian Federation was only indirect ‘and possibly only as a matter of perception’ (in the sense that the only sanction for non-compliance was a stay of the cross-claim), ‘comity dictated that caution be exercised before making the order’.   The Court concluded that the Russian Federation should first be given the opportunity to provide the discovery sought voluntarily and in cooperation with FKP and FGUP.

Heilbrunn v Lightwood PLC [2007] FCA 433 is a recent Federal Court of Australia decision which evidences the breadth of rules for service of originating process outside of Australia in tort cases, which are common to all Australian superior courts except the Supreme Court of Western Australia. 

A vintage Vauxhall motor car made in 1921, owned by the Australian-resident plaintiff, was damaged while being loaded into a container in England by an employee of the English-based defendant.  The Vauxhall had been shipped to England from Australia to participate in a celebration of the centenary of production of Vauxhalls and the damage occurred while it was being loaded for the return journey.  Repairs to the car were undertaken in Australia upon its return.

The plaintiff sought leave to serve the defendant, which did not carry out business in Australia, in England pursuant to the provision of the Federal Court Rules permitting service overseas in a proceeding ‘based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)’.  Unlike the rules of some other Australian superior courts, the Federal Court Rules require leave of the Court before service can be made out of the jurisdiction.

Following the interpretation adopted in relation to similar rules by other Australian courts, the Federal Court held that the rule did not require that the injury which completed the tort occur in Australia, but only that the disadvantage or detriment suffered by the plaintiff as a result of the tort occur in Australia.  This can be satisfied where a degree of personal suffering or expenditure has occurred within the jurisdiction, as took place in this case by virtue of the fact that the repairs to the car were undertaken and paid for by the plaintiff in Australia.

On the basis of the broad interpretation of the rule evidenced by this case, Australian courts have jurisdiction based on service overseas in many tort cases where the only connection to Australia is the fact that the plaintiff has come to Australia (even where they were not previously resident in Australia) and personal suffering or expenditure has occurred in Australia.  Indeed, the Federal Court Rules make it clear that service out is permitted where a tort claim causing damage in Australia is only one of several causes of action alleged in a proceeding, even if service out would not be authorised in respect of the other causes of action.  The rules of some other Australian superior courts are narrower on this point, requiring that service out be authorised in respect of each of the causes of action alleged. 

Or course, even if an Australian court would have jurisdiction based on service overseas, it may decline to exercise jurisdiction on the basis that the court is a clearly inappropriate forum pursuant to the narrow Australian doctrine of forum non conveniens, but this is a relatively difficult test to satisfy: see the High Court of Australia decision of Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1; [2002] HCA 10.

A recent judgment of the Supreme Court of South Australia provides a useful summary of the Australian common law authorities about when the enforcement of a foreign judgment can be set aside. 

The judge concluded: 

a foreign judgment is only binding and conclusive so long as it stands.  A corollary of this principle is that where a judgment is made entirely on the basis of a foreign judgment, and the foreign judgment is later overturned and set aside, good reason exists to set aside the judgment that relied on it.

Benefit Strategies Group Inc v Prider [2007] SASC 250 (4 July 2007)

The decision of the New South Wales Court of Appeal in McNeilly v Imbree [2007] NSWCA 156 may be of interest to those in the United Kingdom (and elsewhere) because it raises the private international law dimensions of the same New South Wales statute as was considered by the House of Lords in Harding v Wealands [2006] UKHL 32; [2006] 4 All ER 1; [2006] 3 WLR 83, namely the New South Wales Motor Accidents Compensation Act 1999 (the MACA).

McNeilly concerned a plaintiff who was seriously injured in a car accident that occurred in the Northern Territory.  The plaintiff took action in New South Wales against the driver of the car for negligence.  One issue in the case was whether the assessment of damages was governed by the MACA or the equivalent Northern Territory statute, the MACA providing a lower discount rate for damages for future economic loss.  The Court of Appeal concluded that the Northern Territory statute applied on the basis that the assessment of damages was a question of substance governed by the law of the Northern Territory as the place of the tort, pursuant to the Australian common law choice of law rule for torts (the lex loci delicti rule).  It was not argued that the lex loci delicti rule was excluded by s 123 of the MACA as a mandatory law of the forum, which provides: “A Court cannot award damages to a person in respect of a motor accident contrary to this Chapter.”

McNeilly may be contrasted with Harding, which concerned a claim before the English courts arising out of a car accident in New South Wales.  The House of Lords characterised the question of damages as a question of procedure and therefore applied English law as the law of the forum, rather than the MACA.  Section 123 of the MACA could not affect this conclusion: even if it had the effect of a mandatory law of the forum in a case before the New South Wales courts, it could not have that effect in a case before the English courts.

Richard Baddeley has written an article entitled “Out of Africa: The Moçambique Rule and Obstacles to Suits for Enforcement of Foreign Registered Intellectual Property Rights in Australia” in the June 2007 edition of The Intellectual Property Forum (pp 36-47).  The introduction reads, in part:

This article challenges the prevailing view that registered intellectual property rights may only be protected through local actions.  An Australian court cannot entertain an action for infringement of a foreign registered intellectual property right because it lacks “subject matter jurisdiction” even though it may exercise personal jurisdiction under relevant court rules.  What barriers prevent subject matter jurisdiction?  The Moçambique rule, based on respect for international comity and sovereignty, has been a major barrier preventing such actions.  Another obstructive rule has been the “double actionability” (or lex fori rule).  However, the basis for the Moçambique and “double actionability” rules seems to be eroding to the point where it now seems possible that Australian courts could decide actions involving the infringement of foreign registered intellectual property rights.

The Intellectual Property Forum is the journal of the Intellectual Property Society of Australia and New Zealand Inc.  The article is not available online.

The Australian Attorney-General and New Zealand Associate Justice Minister have recently announced that their respective governments will implement, by way of a bilateral treaty, the recommendations of the Trans-Tasman Working Group report on Court Proceedings and Regulatory Enforcement. That report was released in December 2006 and recommended that there be closer co-operation between the two countries in civil proceedings, especially as regards matters of jurisdiction and enforcement of judgments.

The Working Group’s central recommendation was that a ‘trans-Tasman regime’, modelled on the Service and Execution of Process Act 1992 (Cth), be introduced as between the two countries. The report went on to recommend that:

• The defendant’s address for service could be in Australia or New Zealand, and parties in one country should be able to appear in court in the other by telephone or video link.
• The test for stay of proceedings should be on the basis that a court in the other country is the “more appropriate” court for the proceeding. This contrasts with the “clearly inappropriate” test for forum non conveniens that currently applies in Australia. Anti-suit injunctions will no longer be available as between Australia and New Zealand.
• Appropriate Australian and New Zealand courts should be given statutory authority to grant interim relief in support of proceedings in the other country’s courts, such as Mareva and Anton Piller orders.
• A judgment from one country could be registered in the other. It would have the same force and effect, and could be enforced, as a judgment of the court where it is registered. Final non-money judgments such as injunctions will also be registrable.
• A judgment could only be refused enforcement in the other country on public policy grounds. Other grounds, such as breach of natural justice, would have to be raised with the original court. Currently, the grounds for non-enforcement of New Zealand judgments under the Foreign Judgments Act 1991 (Cth) are wider.
• The common law rule that an Australian or New Zealand court will not directly or indirectly enforce a foreign public law should not apply to the enforcement of judgments under the Trans-Tasman scheme. Thus, civil pecuniary penalties from one country should be enforceable in the other unless specifically excluded, and criminal fines imposed for certain regulatory offences in one country should be enforceable in the other in the same way as a civil judgment debt.

The proposals apply to in personam civil matters; actions in rem are excluded, as are matters covered by existing multilateral agreements such as those regarding the dissolution of marriage and enforcement of maintenance and child support obligations. The Working Group made no recommendation about the Mozambique rule as it applies to foreign land, preferring to leave this matter to independent domestic reform in the respective countries.

P St J Smart (University of Hong Kong) has written an article in the latest Australian Law Journal (2007 vol 81, p 349) on the question of whether an Australian court may enforce a foreign judgment which is itself founded upon the judgment of another, different foreign court. The abstract continues:

The enforceability of a so-called “judgment on a judgment” has been canvassed by academic writers and has the support of at least one recent case (albeit not in an Australian court). Yet this commentator suggests that an Australian court should not enforce the judgment of an intermediary foreign court because such judgment will not meet the requirement that it is a decision on the merits of the parties’ dispute.

The article takes as its starting point the recent Hong Kong decision in Morgan Stanley & Co International Ltd v Pilot Lead Investments Ltd [2006] 4 HKC 93; [2006] HKCFI 430, which concerned the enforcement in Hong Kong of an Singaporean order which was in turn based upon the registration of an English judgment.

The article is available on the internet to Lawbook Online subscribers.

Prashanti Ravindra has written a short article in the April 2007 Australian Internet Law Bulletin (vol 10 no 1, April 2007) on recent case law (French and US) regarding jurisdiction and the internet. The introduction reads, in part:

This article examines three recent cases to determine whether there are any emerging trends or principles regarding when jurisdiction can be exercised in a cross-border online dispute. It finds that the cases suggest that courts are still struggling to come to terms with the practical effect of jurisdictional issues that arise from online transactions and to develop remedies that are effective across borders.

The article is available online to subscribers.

Kimberlee G. Weatherall (University of Queensland - T.C. Beirne School of Law) has posted "Can Substantive Law Harmonisation and Technology Provide Genuine Alternatives to Conflicts Rules in Intellectual Property?" on SSRN (also to be found in Media & Arts Law Review, Vol. 11, No. 4, p. 393, 2006). The abstract reads:

This article investigates whether there could be practical alternatives to relying on private international law to solve legal boundary issues in cross-border communications contexts, especially those involving IP rights. It points out that certain developments would seem to be tending in this direction — first, with significant moves to remove the legal boundaries (or make them undetectable) through harmonisation of IP law; second, with advancements in technology that seek to ‘reimpose' geographic borders. Developments in both fields proceed apace, and it is worthwhile to explore what difference, if any, they will make. The conclusion is that, although both contribute at some level, perhaps unsurprisingly, neither provides a complete response.

You can download the article, for free as usual, from here.

Richard Garnett (University of Melbourne - Faculty of Law) has posted "An Overview of Choice of Law, Jurisdiction And Foreign Judgment Enforcement in IP Disputes" on SSRN (also in Media & Arts Law Review, Vol. 11, No. 4, p. 341, 2006). Here's the abstract:

Historically, the bodies of legal doctrine known as private international law and intellectual property have inhabited largely separate spheres. Recent technological developments have, however, made possible the communication and infringement of IP rights on a global scale. This article examines the current relationship between private international law and intellectual property as well as a recent reform proposal by the American Law Institute.

Available from here.

Yet another article originally published in the 2003 issue of the Singapore Journal of Legal Studies (pp. 438-518) has been posted on SSRN: “Internet Defamation and Choice of Law in Dow Jones & Company Inc. v. Gutnick” by Gary Ky Chan (Singapore Management University - Department of Law) & Michael Hor (National University of Singapore - Faculty of Law). The abstract reads:

This article focuses on choice of law in the context of Internet defamation with reference to a recent Australian High Court decision, Dow Jones v. Gutnick. The case raised a myriad of issues ranging from comparative defamation laws (and value systems) of the United States versus Australia, the meaning of “publication” and the need for Internet-specific legal reforms. These issues interact with and have an impact upon the choice of law problem. This article discusses the various alternatives for resolving the choice of law problem. It concludes by tentatively recommending some choice of law rules in the context of Internet defamation.

Download the article from here for $5.

Reid Mortensen (TC Beirne School of Law, University of Queensland) has published a new text on Private International Law in Australia. Here’s the publisher’s summary:

Private International Law in Australia is a substantial new text, providing comprehensive coverage by an internationally respected expert author in this area of law. The standard range of topics is covered in suitable detail for LLB students. The book includes important recent developments in private international law. Examination of the decision in Renault v Zhang (2002) and other recent developments will make this the most current, accurate text covering the private international law of tort, a major part of the field for practitioners and students. Summary of contents:

• Introduction to Private International Law
• Jurisdiction and Judgments
• Choice of Law
• International Family Law
• Choice of Obligations Law
• Choice of Property Law

ISBN: 9780409322446. Price: $95.00 (Australian dollars). Available from LexisNexis Australia. 

Call for Papers DEADLINE NOTICE

for the Journal of Private International Law Conference 2007

to be held at the University of Birmingham on 26th -27th June 2007

The deadline for submission of an abstract of a proposed conference paper is 20^th December 2006, at which time all submitted abstracts will be considered by the editors. Vacancies for speaking at the conference can not be guaranteed after the deadline.

Please see here for details on submitting an abstract.

There is an article in the new issue of the International & Comparative Law Quarterly (October 2006; Vol. 55, No. 4) by Reid Mortenson (TC Beirne School of Law, University of Queensland) on "Homing Devices in Choice of Tort Law: Australian, British and Canadian Approaches". The abstract reads:

Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (the lex loci delicti). All three countries abandoned some species of the rule in Phillips v Eyre, which required some reference to the law of the forum (the lex fori) as well as the lex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply the lex fori in cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadian lex loci delicti regimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of the lex fori was formally allowed by use of a ‘flexible exception’ in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries.

For those with online access to the ICLQ, the full article can be downloaded from here.

There is also a shorter article by Richard Frimpong Oppong (PhD candidate, University of British Columbia) in the latest issue of the ICLQ on "Private International Law and the African Economic Community: A Plea for Greater Attention". The full article, again for those with a subscription, can be found here.

With the official launch reception only a couple of weeks away, the latest edition of the one of the world's foremost authorities on private international law is now available for purchase. First published in 1896, Dicey, Morris & Collins, The Conflict of Laws is in its 14th edition. The editors of this seminal work are:

• General Editor: The Hon Mr Justice Lawrence Collins
• Editor: Professor C G J Morse
• Editor: Professor David McClean
• Editor: Professor Adrian Briggs
• Editor: Professor Jonathan Harris
• Editor: Professor Campbell McLachlan

Most will, of course, notice the change in authorship; Sir Lawrence Collins has been elevated to co-author status, to reflect the work and scholarship he has invested in the book since he took over as General Editor in 1987. The publishers, Sweet & Maxwell, describe the latest edition thus:

Dicey, Morris & Collins on the Conflict of Laws is renowned worldwide as the foremost authority on private international law. It explains the rules, principles and practice which determine how the law of England and Wales relates to other legal systems. Explanation of each rule is followed by comment, and illustration by detailed reference to case law, ensuring it remains an in-depth but accessible research tool.
It provides definitive reference for all practitioners concerned with issues such as contracts made or performed in other jurisdictions or with foreign parties, property situated overseas, disputes relating to torts committed abroad or committed by foreign parties, and personal and family matters involving people in other jurisdictions.

• Completely revised and updated to include analysis of all the key legislation and cases since the last edition
• Deals with the impact of the Civil Procedure Rules on private international law
• Includes analysis of judicial decisions from common law jurisdictions as well as detailed consideration of international conventions and EU materials
• Supplemented annually to stay up to date with developments in legislation and case law

ISBN: 042188360X / 9780421883604 (Hardback). Price: £349. Available from Amazon, Hammicks Legal, and Sweet & Maxwell.

We are pleased to announce the

Journal of Private International Law Conference 2007

to be held at the University of Birmingham

on

26th -27th June 2007

——————

Call for Papers

The editors, Professor Jonathan Harris (University of Birmingham) and Professor Paul Beaumont (University of Aberdeen), would be delighted to receive applications from scholars to present papers at the conference. There are two presentation categories:

Academic Conference Papers

The greater part of the conference will focus on academic papers in all areas of private international law. An academic paper will be expected to last for approximately 30 minutes at the conference.

To submit an abstract of the proposed paper, contact:

Jonathan Harris
Professor of International Commercial Law
School of Law
University of Birmingham
Edgbaston, Birmingham, B15 2TT, UK
Email: j.m.harris.law@bham.ac.uk

————–

Postgraduate Research Papers

The morning of 26th June will be devoted to papers given by postgraduates on their current research topic. A postgraduate research paper will be expected to last for approximately 15 - 20 minutes at the conference.

To submit an abstract of the proposed paper, contact:

Martin P. George
School of Law
University of Birmingham
Edgbaston, Birmingham, B15 2TT, UK
Email: mpg514@bham.ac.uk

————–

More information on booking and prices to follow. To register your interest in attending the conference, and receive more information via email, please contact:

conflicts-conference@contacts.bham.ac.uk

USEFUL LINKS: