Several prominent lawyers and judges gathered June 12, 2015 for the Advocates’ Society’s Conference on “Cross Border Issues for Litigators” in Toronto. A lawyer involved in the recent Nortel Networks dual (Ontario – Delaware) trial recounted the procedural and logistical challenges of conducting two trials in two jurisdictions simultaneously. Another challenging aspect was the French blocking statute that would have exposed French witnesses to criminal sanctions if they had testified in either of those trials.
Another lawyer explained the need for protective orders when evidence given in Canada might otherwise be used in American companion proceedings where witnesses may have reason to “invoke the fifth (amendment)”.
A judge in the Sino-Forest proceedings discussed a world-wide Mareva injunction he issued. The order allowed defendants in Hong Kong to access certain funds for living expenses, but because the judge had no evidence as to the cost of living in Hong Kong, he left the amounts for a Hong Kong judge to decide.
Another presentation covered the Supreme Court of Canada’s decision in R. v. Hape, 2007 SCC 26 which addresses the applicability of the Charter of Rights and Freedoms to the extra-territorial collection of evidence. In a nutshell, the Court held that the Charter generally does not apply extraterritorially, but would apply in specific circumstances, including where to not apply it would be to violate Canada’s international human rights obligations.
Letters Rogatory were discussed too. They are a timely topic: they played a role in recent litigation involving Nestles, and Sedona Canada has issued a Commentary on Enforcing Letters Rogatory Issued by an American Court in Canada.
Changes may be coming to the enforcement of foreign judgments, specifically in cross-border insolvency cases. The United Nations Commission on International Trade Law (UNCITRAL) is working on a model law for the enforcement of insolvency-derived judgments. However, a completed model law is likely still three or more years away.