Commodifying Justice for Global Free Trade: The Proposed Hague Judgments Convention

A notable omission from the legal apparatus for international free trade is a multilateral agreement on court jurisdiction and enforcement of foreign country judgments. However, negotiations toward such an international convention are in progress. This paper explores the background to those discussions. It examines the current draft of the proposed judgments convention with particular reference to the way in which implementation of that draft would affect Canadians engaged in the practice of international commercial litigation. It concludes with a discussion of current sticking points in the negotiations, and with commentary on the judgment enforcement scene and the implications of failure to achieve international uniformity in that area

Cross-Border Transfers of Court Proceedings

The Court Jurisdiction and Proceedings Transfer Act might easily have been two statutes rather than one. There could have been a pair of uniform acts, one delineating the territorial competence of the provinces’ superior courts and the other implementing a regime for the cross-border transfer of court proceedings. After all, these two matters are neither logically interdependent nor especially tightly linked. Part 3 of the CJPTA, dealing with transfers of proceedings, is not confined to lawsuits where the initial court takes jurisdiction under Part 2. It applies regardless of whether the initial court bases its jurisdiction on the CJPTA or on some other legislation, such as a specialized family law statute. Indeed, it applies when the transferring court does not have territorial competence at all. While the matters dealt with, respectively, in Parts 2 and 3 of the CJPTA certainly fall within the broad domain of private international law, they are no more closely affiliated than other fields where the CJPTA’s progenitor, the Uniform Law Conference of Canada (“ULCC”), elected to deal with matters in discrete statutes. For example, the ULCC chose to address cross-border enforcement by drafting separate uniform acts dealing with recognition of (1) Canadian civil judgments, (2) foreign-country civil judgments, (3) international arbitral awards, (4) foreign subpoenas, (5) foreign maintenance and custody orders, (6) foreign child welfare orders, and (7) foreign judgments based on a contract containing an exclusive forum-selection clause. In short, the ULCC has not been in the habit of drafting sweeping, comprehensive uniform acts but rather has elected to advance in increments. It has been a splitter, not a lumper

The Strange Cases of Alberta\u27s Guarantees Acknowledgement Act A Study of Choice-of-Law Method

Fifty years ago John Willis wrote Two Approaches to the Conflict of Laws: A Comparative Study of the English Law and the Restatement of the American Law Institute. There he described two different - perhaps even opposed - conceptions of the problem posed by cases involving geographically complex facts. It is a goal of this article to assess the status and the vices and virtues of those two approaches in Canada today. Such a task is not a mere updating of Willis\u27 piece, though that alone might be a useful exercise. In the first place, Willis\u27 analysis takes place largely at the level of conflict-of-laws theory. He is concerned with the way in which one\u27s understanding of the jurisprudential nature of conflict of laws affects one\u27s approach. Of such matters there is virtually no discussion in Canadian courts today. For instance, argument over whether a Canadian conflict of laws is based on a vested rights theory or a local law theory rarely occurs today in either courtroom or classroom. But the disputes over theory of the 1930s are now reflected in disputes over judicial methodology: What facts are relevant to a choice-of-law decision? What questions should be asked and in what order? What sort of arguments can be made and what authorities should be appealed to? In addition to analyzing the state of Willis\u27 two approaches today I want to comment on why the terms of the debate between those approaches have become so predictable

What the Dormouse Said: How the Sixties Counterculture Shaped the Personal Computer by John Markoff (New York: Penguin, 2005)

What the Dormouse Said is the revisionary back- story of Silicon Valley; in particular, the roots of the current model of human interface with personal com- puters (video screen, keyboard, mouse) and the early stabs at creating the Internet. Markoff is a long-standing hi-tech reporter for the New York Times who, over the past 20 years, has co-written three computer-related books. In Dormouse, his fourth book (but first solo effort), he takes us back to the pre-ironic age — ‘‘the Flintstones era of computers’’ — when batch processing and beatniks still roamed the earth. His claim is that the various accounts of the birth of personal computing have failed to attend sufficiently to the significance of the unique social milieu of San Francisco-area culture of the 1960s. There is much debate, not to mention much confused popular memory, over what the essence of the 1960s was, but in Markoff’s view, it was characterized by a bohemian sensibility that was open to experiments in alternative living arrangements, a disposition to anti- establishment politics (especially opposition to the military-industrial complex and its war in Vietnam), and a willingness to experiment with altered psychic states, especially through ingesting and inhaling certain substances. More fundamentally, in Markoff’s slightly elegiac account of the period, what was shared by the hippies and the personal computing pioneers based in and around Stanford was a commitment to transforming the world and the nature of humanity in a fundamental way — bringing about a change that hadn’t come before

Did She Mention My Name?: Citation of Academic Authority by the Supreme Court of Canada, 1985-1990

Readers of court judgments will have observed that in the course of expressing reasons for the decisions they reach, judges commonly refer to books and articles written by academics. This is not surprising. Many scholarly publications contain information, arguments and opinions pertinent to the choices that judges must make, and lawyers commonly refer to such works in the written and oral arguments they present to courts. We would therefore expect the judges who must assess and respond to such arguments to make mention of that scholarly material. Moreover a certain portion of academic writing-in particular, a preponderance of law review articles-is written as more or less direct exhortation tojudges about how to decide cases expected to come before them.1 Possibly this is no more than a rhetorical stance, for it may be that law professors are really writing to other law professors (or to no one), and that the practice of pretending to talk to appellate courts is simply a stylistic device which they ritualistically, perhaps unthinkingly, adopt. But presumably some portion of the writing that legal scholars ostensibly direct at judges is actually intended to be read by them and to influence the decisions they make. In any event, given the amount of writing couched as advice to judges, the amount of writing on legal matters generally, and lawyers\u27 practice of citing such material in argument, it comes as no shock to see that judges make reference to academic publications in their judgments

Cites for Sore Ears (A Paper Moon)

Music, as we know, is one of our vital cultural practices. It has charms to soothe a savage breast and is the food of love. \u27 Someone who does not love music is not to be trusted but someone who has music in his [sic] soul will be most in love with the loveliest. Music and one\u27s attitude towards it tell us a lot about the ethical and moral value of a person. Law, another key part of our culture, has traditionally dealt with music mainly as something which might fall within the domain of copyright or some related field of property. More recently, however, legal discourse in Canada has taken a much broader approach to the connections between music and law. Increasingly, articles and books by legal scholars make direct appeals to popular music, appropriating lyrics for use in titles, as epigrams or in some other form of reference. As Canadian legal scholarship changes in the \u2790s and continues to expand its focus on the interdisciplinary and contextual aspects of law, such use of popular music references will no doubt continue and will probably occur with even greater frequency. The invocation of music in legal scholarship is an appeal to its breadth as a carrier of social meaning and to our collective understandings of the messages created by both law and music. With continuing references to music, songs and lyrics in case law, citations to these forms of expression in law reviews and books have begun to constitute another new form of legal knowledge

Current Jurisdictional and Recognitional Issues in the Conflict of Laws

In honour of the 40th Consumer and Commercial Law Workshop and the 50th volume of the Canadian Business Law Journal we have been asked to provide a retrospective of developments in the conflict of laws that highlights emerging issues. We have chosen to present it in a conversational fashion in which each of us presents a perspective and the other two offer their comments

Current Jurisdictional and Recognitional Issues in the Conflict of Laws

In honour of the 40th Consumer and Commercial law Workshop and the 50th volume of the Canadian Business Law Journal the authors were asked to provide a retrospective of developments in the conflict of laws that highlights emerging issues. They present their comments in a conversational fashion in which each presents a perspective upon which the other two authors comment. The following issues are discussed: reorientation of Canadian private international law following the Morguard decision (Supreme Court of Canada, 1990), convergence - both international and interprovincial, and becoming more worldly in a changing world