Legal Test for Risk of Unfairness in Foreign Court Systems Evolves

     Recent news reports about the fierce resistance in Hong Kong to a proposal to allow extradition to the People’s Republic of China, and about the imprisonment of dissidents in Saudi Arabia,  remind us that some foreign countries have judiciaries that often fail to deliver justice, due to bias or corruption, and that Canadians have a legitimate concern about being subjected to them.   

     This concern can arise where a defendant asks the Canadian court to decline jurisdiction in favour of a foreign court based on forum non conveniens, or where a judgment creditor asks a Canadian court to enforce a foreign judgment.   

     Until recently the standard of evidence to establish that a foreign court is corrupt and to be avoided was unreasonably high.    In Oakwell v Evernorth (2006) 81 O.R. (3d) 388 (C.A.), a judgment debtor, Evernorth, defended a proceeding to enforce a judgment from Singapore in a commercial matter. Evernorth led uncontroverted evidence of government interference in political (not commercial) trials in Singapore, but no evidence of interference in its own case.   The Ontario Court Appeal rejected this defence, saying that Evernorth needed to have proven interference in its own case in Singapore, and needed to have proven actual bias, as opposed to reasonable apprehension of bias. 

     In Garcia v Tahoe Resources, 2015 BCSC 2045 the plaintiffs were protestors who allegedly had been shot at the defendant’s mine in Guatemala by security guards. They sued the Canadian owner in B.C.  The defendant moved to stay the proceeding on the grounds that the courts of Guatemala are a more appropriate forum.   The plaintiffs led evidence of unfairness of those courts, and the court found there are some problems there.  In granting the stay, the motion court ruled that:

where the forum non conveniens analysis points to a clearly more appropriate forum, then the plaintiff must take the forum as he finds it even if it is in certain respects less advantageous to him unless he can establish that substantial justice cannot be done in the appropriate forum.  (para. 64).

     More recently the test has become less onerous.   The B.C. Court of Appeal reversed the motion court decision in Garcia (2017 BCCA 39), saying the motions judge had applied the wrong test, and had inappropriately placed the onus on the plaintiff.    The proper test is “whether there is a real risk of an unfair process in the foreign court”, which is incidentally the test used in the United Kingdom (para. 115 and 124).  The Court said “It is inadequate to ask whether the foreign forum is capable of providing justice.” (para. 124).       As well, the issue of unfairness is to be treated as one of the factors in the forum non conveniens analysis.  Insofar as it is the party that advocates for moving the case to a foreign court has the onus of showing the foreign court is more appropriate, that party must show there is no real risk of an unfair process.     

      This ruling has not been appealed.      The B.C. Court of Appeal applied the real risk test again in Araya v Nevsun Resources (2017) BCCA 401), another case involving abuses at a Canadian-owned mine overseas (Eritrea). The defendant has appealed to the Supreme Court of Canada but not on this issue.    

     In Evernorth, the Court called for evidence of corruption in the party’s own case; evidence of corruption in other cases from the same court would not suffice.   The Court also required evidence of actual bias, not just a reasonable apprehension of bias.    Should the test in a foreign judgment enforcement case differ from the test in a forum non conveniens case?   In the former, the plaintiff’s case has been tried in the foreign court and a judgment has been rendered, whereas in the latter the case has not yet been tried. 

     However, this is not a reason to require the judgment debtor to prove corruption   Proof of corruption and bias is almost by definition very difficult to obtain.  If a judgment was affected by a bribe or political interference, how is a litigant expected to know that the reason he lost is not the reason the judge gave in written reasons but instead a bribe from the plaintiff, or a discreet phone call from a higher-ranked government official whose interests, financial, political or other, are affected?  The defendant cannot expect disclosure.  It is not impossible, but very unlikely, that he/she will find out at all, let alone before its too late.   Evidence of corruption in other cases in the same court, or evidence that the judicial system lacks safeguards against corruption, or evidence that judges are vulnerable to outside influences should be given at least some weight, albeit less weight than evidence of corruption in one’s own case.  To ignore that evidence altogether is to turn a blind eye to that corruption. 

     The Court of Appeal in Garcia made clear that although the evidence of corruption was general, not case-specific, it cannot be ignored, although it will carry only limited weight (para. 125-126).  With that caveat, it makes sense to extend the “real risk” test to judgment enforcement cases.  That is, the court should ask whether there is a real possibility that the foreign judgment was the product of an unfair process in the foreign court”.  Otherwise, to enforce a foreign judgment is to put at risk public confidence in our own justice system.

 

New Guidance from the Ont. C.A. re Forum Selection Clauses

     A recent decision of the Ontario Court of Appeal suggests that forum selection clauses (“FSC’s”) will be construed as non-exclusive unless they are clearly exclusive. 

Background

     Let’s first review the differences between exclusive FSC’s, and non-exclusive FSC’s.   Exclusive FSC’s require the parties to litigate their disputes in the courts of a specified forum or jurisdiction.  Non- exclusive FSC’s mean only that if a party has commenced a proceeding in the specified forum/jurisdiction, the other side cannot challenge that court’s jurisdiction. If no party has yet commenced a proceeding there, the parties remain free to commence proceedings elsewhere.  

     To overcome an FSC, one must show “strong cause” why it should not be enforced (Z.I Pompey v. ECU Line NV [2003] 1 S.C.R. 450). That test (that presumption of enforceability) applies only to exclusive FSC’s.    However, if the court decides not to enforce the FSC, such that it is no longer a basis to stay the proceeding, the court can nonetheless stay the proceeding on forum non conveniens principles.   The FSC is then just one of many factors in that forum non-conveniens analysis. 

The Court Decision

     In that Court of Appeal case -- Forbes Energy Group v Parsian Energy Red Gas   2019 ONCA 372 -- the FSC was:  “This term sheet shall be governed by and construed in accordance with the laws of England and the Parties agree to attorn to the courts of England.”      The plaintiff commenced an action in Ontario. The defendant moved to dismiss the action on the grounds that it violated the FSC, and that on forum non conveniens principles England is a more appropriate jurisdiction.   The motion court held that the plaintiff had not shown “strong cause” that the FSC should not be enforced. That court then conducted a forum non conveniens analysis, held that England is the more appropriate forum, and stayed the Ontario proceeding.   The Defendant appealed. 

     The Court of Appeal held the motion judge erred in applying the strong cause test.  The test applies only to exclusive FSC’s, and the motion court had not determined that the FSC here was in fact exclusive.     Thus the Court of Appeal implicitly held that the FSC is non-exclusive, apparently because it uses the term “attorn” and does not explicitly bar proceedings other than in England.   This ruling suggests that FSC’s are to be interpreted as non-exclusive unless they are clearly exclusive. 

The Court of Appeal then carried out a new forum non-conveniens analysis and found that England is not the more appropriate forum.  In the result, the court reversed the order staying the Ontario proceeding.    

Take aways for Drafting FSC’s

      If one wants a clearly exclusive FSC, consider adopting the clause that the Supreme Court of Canada held to be “unambiguous and unqualified” in  Z.I. Pompey: “any claim or dispute arising hereunder or in connection herewith shall be determined by the courts of Antwerp and no other courts”.    

     Remember that the term “attorn” means to submit to or accept a court’s jurisdiction, generally in the context of an existing legal proceeding in that court.  The term does not convey exclusivity if no legal proceeding has yet been commenced.  

     Also, a clause stipulating the law of a certain country (here,  England) as the law of the contract does not make the FSC exclusive.   It is not uncommon for a contract to designate one country as the forum yet designate the laws of another country as the governing law of the contract.

Brazil Accedes to Service Convention

     Brazil has acceded to the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters (the “Convention”); it will go into effect in Brazil on June 1, 2019.    This is sure to simplify and expedite the process for plaintiffs outside Brazil to get defendants in Brazil served with an originating process. Up to now, a plaintiff has had to arrange for a court in his/her home country to issue letters rogatory asking Brazil’s permission to serve the papers. Obtaining such permission has been a cumbersome procedure as the letters must be transmitted, using diplomatic channels, to the President of the Federal Supreme Court in Brazil, and the Ministry of Foreign Relations is involved also.     

     To serve someone in Brazil under the Convention, one presents a request to Brazil’s Central Authority, which is the Ministry of Justice.    Brazil has given notice it will not allow service via postal channels (Convention, article 10) nor via diplomatic channels or by court officers or other competent persons (Convention, article 8).  The statement of claim must be accompanied by a translation into Portuguese.      

     If the Central Authority cannot serve the statement of claim, the certificate it will issue must be signed by that Central Authority or by a judge. 

     Brazil’s accession to the Convention is the latest in a series of modernizations of its legal system. In 2015, Brazil brought in a new Code of Civil Procedure (Law No. 13.103/2015) which also increased efficiency in the legal process.