Prof. Tetley’s Private Int’l Law 2004
(1) Contacts (connecting factors to the law)
(2) Characterize the problem
(3) Auxiliary – ie. time, location, interest
-Can have a NY tort w/ QC damages – this is called Dépeçage, which is a division of a conflict into two or more parts & each can have it’s proper law thereto.
-a court can have jurisdiction where one is (a) resident & where the (b) K took place & can be given where the (c) tort took place – (these are just a few ex. of contacts)
Ishizaki v. US. (“ISK”)
Facts: Japan boat, American boat, tort in Japan.
Issues: Jurisdiction can be either US or Japan.
Holding: US gives jurisdiction.
Lauritizen v. Larsen etc..
Facts: Danish K, Danish Seaman, K signed in US.
Holding: US jurisdiction.
Step 1:
What rules of conflict apply? Lex Fori – law of the forum. Ie. sue in QC, QC rules apply
Renvoi is when QC court applies NY conflict rules.
âQC banishes single Renvoi at s.3080 CCQ.
âRome Convention rules Renvoi out at art. 15.
Step 2:
Look at content of competing laws. In NY there is a guest statute. In an injury caused because of a car accident for ex. Guests (ie. hitchhiker) can’t claim as much as clients (ie. taxi).
-You have to know the law if one is to compare them
-You should know the effect of a QC court applying NY law – maybe there in fact is no conflict of laws or maybe in the competing jurisdiction they may allow something Canadian courts would not in the same situation w/ regard to public policy.
èQC courts won’t recognize that it is ok to sell children.
-There are some statutes that state if you sue in this court you must apply this law.
èaction in collision b/t 2 Jap. ships in Canadian waters. Federal court must apply Canadian law – Lex fori.
Art. 1(1) Romeâ does not strictly refer to member states. Therefore, Rome applies to all.
Step 3:
Connecting Factors (Morris, “closest & most real connections”)
-Weigh the connecting factors as to what law applies.
âIe. tort in NY – NY law, K then use QC law – where agreed to in K.
-Recognize foreign law where applicable.
Exceptions (step 11 from Methodology)
a) Bona fide & legal
âCourt won’t recognize K if it wasn’t legal to start w/.
b) Int’l public policy/order
âForeign law may be agst int’l public order. Refer to s.3081 CCQ & art.16 Rome.
c) Mandatory rules
âie. Warsaw
d) Formalities of the forum court
âie. How one proceeds before the court. Namely – Procedural rules.
e) Evasion of the law
âCourts won’t recognize foreign law if someone is evading the law. Avoidance of course is ok.
pulating in an agreement that arbitration is to take place in a specific place (ie. QC) then you have to state which law applies as well. (ie. QC law) So long as we are not evading the law or any o/ jurisdiction.
-In Canada, the INSPOL (sp.) rule of arbitration was adopted. Thus, one can choose the rules to designate & what rules & law apply in cases of arbitration.
èIn QC see 3133 CCQ.
s.3130 CCQâEv. & rules of ev. that are used is ano/ exception as to what rules are used in the forum.
-Prescription as well may be taken away from procedure in 3131 CCQ as it too may be followed as to how an applicable foreign law dictates.
14 Romeâ Burden of Proof.
èfollows the closest most real connection. (note: this is not a hard & fast rule)
10(1)(c) Romeâ The law is applicable to s.3-6 then consequences are from the same body of law. (Again: this too is slowly breaking down & is not that fixed a rule)
Art. 13 Romeâ Subrogation (means insurance co. is assigned rights & can take an action on ano/s behalf.)
