International Law

As more companies enter the international market, attorneys often find themselves in situations where they are asked to represent or counsel clients that have been sued in foreign jurisdictions. The purpose of this article is to provide an overview of Canadian class action law and explain some of the key differences between Canadian and U.S. law and jurisprudence for those practitioners who represent clients that may be subject to jurisdiction in Canada.

Global changes underscore the need for lawyers to develop new skill sets to add value to their services and assist clients in obtaining meaningful appellate review when arbitration goes awry.

It is a truism that we live in a global world. One manifestation of globalism is the increasing use of arbitration in commercial transactions. In 2010, one in seven U.S. companies undertook at least one international arbitration. 2010 Fulbright Litigation Trends 7th Annual Survey. Not surprisingly, corporations from one jurisdiction are reluctant to use the courts of another jurisdiction as a forum for resolving their disputes. They have concerns about the impartiality of the courts, mastering the complexities of a different legal system, and finding a lawyer to represent them there. Arbitration offers an increasingly used solution to these problems.

In the late 1800s, the United Kingdom (hereinafter "UK") started to use asbestos heavily for various industrial projects.[1] During the early 1900s, asbestos use remained stagnant in the UK but eventually saw a vast increase after World War II, remaining at a high level until the early 1980s.[2] Asbestos-related diseases claim more than 4,000 lives each year in the UK[3], making it the single greatest cause of work-related deaths.[4] The use of asbestos is prohibited in the UK but there remains approximately six-million tons of the product within the sovereign state.[5] The UK's Health and Safety Executive (hereinafter "HSE") regulates and controls the handling of asbestos products.

With the ever-increasing expansion of multinational corporations and globalized business transactions, it is exceedingly likely that attorneys will, at some point, have to conduct cross-border e-discovery on behalf of their clients. In nearly all commercial disputes in U.S. courts, a substantial amount of electronically stored information ("ESI") is demanded and, if necessary, ordered to be produced. Complying with such requests poses great challenges when the information sought is located outside of the U.S. and foreign data privacy and discovery blocking statutes are involved. Being prepared for the complications and burdens associated with cross-border discovery is critical for any party to U.S. litigation with ESI located in non U.S. jurisdictions. This article provides an overview of the legal requirements and suggests guidelines and strategies to address such difficulties.

The European Commission has adopted a list of 222 EU approved health claims for use on foods, which are permitted for use in commercial communications to consumers. A number of other claims remain 'on hold' and will be the subject of further consideration.

Regulation 432 / 2012 (establishing the list of approved health claims) was published in the Official Journal on May 25, 2012 and came into effect on June 14, 2012. The list itself will come into effect six months later, on December 14, 2012. This means that food business operators in the European Union have between now and then to remove any of the claims which have been rejected by the Commission from any packaging, labeling and marketing materials attached to their products.

In July 2012 a trade association representing health food manufacturers, along with a number of UK and Dutch companies, challenged the Regulation in the European courts. They claim that by keeping certain claims on hold for further consideration, the Commission's actions lack transparency, are discriminatory and are not in accordance with good administration. They are also challenging the assessment criteria used to develop the list which they claim failed to ensure adequate collaboration with national food authorities lacks legal certainty and fails to satisfy the duty to give reasons.

On December 7, 2011, the French high court, the Cour de Cassation, ruled that a United States District Court could not use the doctrine of forum non conveniens under Article 33 of the 1999 Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999) to dismiss and "transfer" to Martinique - a French possession in the Caribbean - suits brought in the United States by the 152 victims of the crash of a Colombian air carrier over Venezuelan territory. The French court ruled that the plaintiff, and only the plaintiff, has the choice of deciding which jurisdiction will decide the dispute without the possibility that an internal rule of procedure of another state (in this instance the United States) might contradict his choice.

In a judgment handed down on October 26, 2011, the first Civil Chamber of the French Supreme Court (the "Cour de cassation") specified the conditions under which a party may be prevented from enforcing an arbitration clause because of contradictions affecting its own procedural conduct.

The recent Thailand flooding, which began in late July 2011 and extended to mid-January 2012, illustrated the devastation and ensuing response difficulties that accompany a natural disaster.

The Thailand flooding was the worst ever natural disaster in Southeast Asia, claiming 815 lives. Sixty-five of Thailand's 77 provinces were flooded. Seven major industrial parks suffered flood damage that affected more than 1,500 factories and 350,000 workers.

On January 13, 2011, the French Government issued a decree which overhauls French arbitration law. This reform is of great importance and, because French arbitration law had not been amended for 30 years, very welcome.  

The decree was created in close discussions between the Ministry of Justice and international arbitration practitioners with the goal to preserve the attractiveness of France as a forum for international arbitration.