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publications
Andrea Carska-Sheppard
• Co-Author of the “Tone from the Top: The Role of General Counsel on Prevention of Harassment and Abuse in International Sports”, Frontiers (2021) https://www.frontiersin.org/articles/10.3389/fspor.2021.625684/full?utm_source=S-TWT&utm_medium=SNET&utm_campaign=ECO_FSPOR_XXXXXXXX_auto-dlvrit
• Co-Author of the International Olympic Committee Consensus Statement: Harassment and Abuse (non-accidental violence in sports), Br J Sport Medicine, 2016 September
• Co-Author with Professor Paul Weiler, "Back on Track 2: Corrective Justice for Performance Enhancing Malpractice in Sports," 2 Pace I.P. Sports & Ent. L.F. 137 (2012) https://dash.harvard.edu/bitstream/handle/1/16200178/Back%20on%20Track%202_%20The%20Principles%20of%20Corrective%20Justice%20for%20Perform.pdf?sequence=1&isAllowed=y
• Co-Author, "Reduction of Corruption In The European Union: Czech Republic Perspective," The New York International Chapter News, NYSBA, Winter (2011/2012)
• The International Arbitration Paradigm and Application of Dispute Resolution Measures — A Czech Republic Perspective, Arbitration International, Volume 27, No.1 47-56 (2011)
• "Where are the Sports Disputes Arbitrated?" The Peacemaker, June 2011
• Remarks from the seminar on the Trends in Arbitration in North Carolina, The Peacemaker
• "Issues Relevant to the Termination of Bilateral Investment Treaties," 26 Journal of International Arbitration, 755-771 (2009)
• Co-Author, "Quick Reference: Lex Loci - Enforcement of Foreign Judgments in Argentina, Brazil and Mexico," Trans-national Dispute Management, Volume 6, issue #01(March 2009)
• Co-Author, "Back on Track: Corrective Justice for Performance Enhancing Malpractice in Sports," SSRN network
video links
• Safeguarding of Athletes from Harrasment adn Abuse: International Sports Competitions Guidlines ( starting at 7:25) https://youtu.be/VI6TsdX5jV4
• Duke Law School: Prevention of Harrasment and Abuse in Sports Guidlines
https://www.wralsportsfan.com/ioc-to-set-guidelines-for-abuse-harassment-in-sports/17044917/
Photo Gallery
At the IOC Forum in Buenos Aires and the Summer Olympic Games in Rio
At the United Nations in New York for the IOC Women In Sports Trophy Awards.
At the Olympic Museum in Lausanne announcing winner for IOC Women in Sports Awards for Africa (Marvat Hasssan from Egypt)
While researching at the Harvard Law School for Professor Paul Weiler.
Speaking at Commercial and Sport Law Seminars and Conferences
Working for Honourable Johanne Gauthier (in the middle) as judicial law clerk at the Federal Court of Canada. Here at the reception at the Supreme Court.
Interviewing hockey legend Jaromir Jagr on his arrival to the NHL as accredited journalist with Montreal Canadians.
Hockey family
Sking in Jasna in Slovakia - home of 2021 FIS World Cup
CaSe study
International Motor Sport Expedition
Selected Considerations In International Tort Dispute:
Prince George (Canada) – Prague (Czech Republic) – Paris (France) - Cincinnati (USA)
by Andrea Carska-Sheppard
Introduction
After the client left his office, Attorney Klapal looked out the window of his Prague office. Lawyers get used to the most unusual cases but the chance of the circumstances happening in this case were just incredibly small. As the client left and Mr. Klapal was reflecting on this case, the wheels of justice had already taken their course thousands of miles away in the remote location of Prince George in British Columbia, Canada, about a ten hour drive north from Vancouver.
The lawsuit had been filed against his client’s 20 year old son who was living in the Czech Republic. The lawsuit was filed with the Supreme Court of British Columbia[1] in Canada and the proceedings were initiated by a French citizen, a teacher from Paris. The case arose out of a collision between defendant’s motorcycle and plaintiff’s bicycle. The plaintiff was lifted by the helicopter after the accident and had to undergo treatment in Canada and France. In her legal case she alleged that she suffered extensive injuries, as a result of the collision which she alleged was caused solely as a result of defendant’s negligence, which he denied. Attorney Klapal entrusted me with this case which, in the first phase, required determination of the scope of the liability insurance policy which his client had purchased in the United States prior to the motor-sport expedition from Alaska to Canada. To the satisfaction of all parties involved this complex issue, the case was eventually settled but it raised multiple complex issues outside the formal court proceeding.[2] This discussion on topics such as the validity of service pursuant to the Hague Convention, jurisdiction of the Supreme Court of British Columbia and whether this case qualified for the discretionary dismissal based on forum non-conveniens[3] may be of interest to those who act as counsel in multi-jurisdictional disputes. While most transnational tort cases involve commercial entities, this case shows there are instances, such as this, where the center of an international tort dispute may involve as opposing parties individuals from different member states in Europe in the proceedings in North America.
1. Was The Service Pursuant The Hague Service Convention[4] Legally Sufficient?
The general benefits of the Hague Service Convention is that the service is often accomplished faster and cheaper. There seems to be some popular perception that as long as the existence of an action is sufficiently brought to the attention of the defendant, the service is valid and there is no point in challenging its validity because the plaintiff has the opportunity to cure and make another – this time valid service.
However, what constitutes legally sufficient service varies from jurisdiction to jurisdiction, and there are a number of cases in the United States which seek to quash the validity of Service pursuant to the Hague Convention. When it comes to the international cases, invalid service of process can result in some jurisdiction as grounds for denial of enforcement of a foreign judgment. In Volkswagenwerk Aktiengesellsachaft v. Schlunk, 486 U.S. 694 (1988) 486 U.S. 694, the U.S. Supreme Court discussed the sufficiency of service of process. It noted that the “legal sufficiency” of formal delivery must be measured against some standard and it references the internal law of forum state as that standard:
“Service of process refers to a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. 1 Ristau 4-5(2), p. 123 (interpreting the Convention); Black's Law Dictionary 1227 (5th ed. 1979); see 4 C. Wright & A. Miller, Federal Practice and Procedure 1063, p. 225 (2d ed. 1987). The legal sufficiency of a formal delivery of documents must be measured against some standard. The Convention does not prescribe a standard, so we almost necessarily must refer to the internal law of the forum state.”
In the present case, both Canada where the action was filed and the Czech Republic, where defendant resided, are members of the Hague Service Convention. In the Czech Republic under the Convention service is arranged through the Czech Central Authority and, unlike in some other countries, all documents (e.g. summons, complaint and other documents) to be served must be translated into Czech. But what if the defendant is served only part of the pleadings against him in his native language? Does this constitute a legally sufficient notice or could this be also grounds for non-enforcement of the foreign judgment?
In this case, the defendant was served at the District Court for Prague 6 and only received the Second Amended Statement of Claim which was filed in Canada on November 19, 2010. He has not been served the original statement of Claim filed in Canada on June 8, 2010. The Second Amended Statement of Claim contained no underlines which would show the amended portion of the legal document and it was unclear how the original filing compared to the second amended document. The defendant, who did not speak English, was deprived of the opportunity to read the case against him in his native language[5] and, arguably, his natural justice rights were violated because he did not have adequate notice of case made against him
Though the Supreme Court of British Columbia did not have to address the issue of adequacy of service on the level of international/transnational dispute management, it is important for counsel to keep in mind that defective service may be grounds for denial of enforcement of the foreign judgment. . While there are exhaustive EU Regulations dealing with the enforcement of foreign judgments amongst member states, there is no bilateral treaty with Canada dealing with this issue and, as such, the enforcement of foreign judgments in the Czech Republic will be determined pursuant to the local law.[6]
The Czech Code of Civil Procedure contains no special provisions regarding the recognition and enforcement of foreign judgments. Article 64 of the Act No. 97/1963 Coll (as amended)[7], on International Private Law and Procedure, specifies the circumstances under which a foreign judgment can neither be recognized nor enforced in the Czech Republic and it includes situations where the authority of the foreign state deprived the participant against whom the decision is to be recognized and/or enforced of the possibility to duly participate in the proceedings, particularly if the participant was not served with the lawsuit or writ of summons personally or where the recognition is contrary to Czech public order[8].
2. Was The Supreme Court Of British Columbia Appropriate Forum To Adjudicate The Claim Between Two Citizens Of European Union (Czech And French) In These Circumstances?
Though the Canadian Courts afford plaintiffs very generous access to the domestic courts, its objective is to protect the legal rights of Canadian residents. While at the surface it appears that place of accident is sufficient to establish jurisdiction of the Canadian court (Tolofson v. Jensen [1994] 3 S.C.R. 1022, Dembroski v. Rhaindes 2011 BCCA 185), the Canadian courts have not yet rendered a judgment on the jurisdiction in circumstances where both parties were non-Canadian residents and no damage was caused or alleged to have been caused by anyone who was a citizen, resident or an investor in Canada.
When a tort is committed in British Columbia, Article 10 (g) of the Court Jurisdiction and Proceedings gives the British Columbia Court only a presumptive jurisdiction. The Supreme Court of British Columbia Rule 21 allows litigants to object to the Court’s jurisdiction. In Stanway v. Wyeth Canada, 2008, BCSC 847, which was upheld by the Court of Appeals in 2009 BCCA 592, showed that there needs to be “a substantial connection” between a forum and matter in dispute. The real and substantial connection test was analyzed by the Supreme Court of Canada, among others, in Morgard v. De Savoye, [1990] 3 S.C.R.1077, Tolofson v. Jensen, [1994] 3 S.C.R. 1022. The Judge in Stanway v. Wyeth cited factors established in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.) for the approach to the real and substantial connection test.
The Connection Between The Forum And The Plaintiff’s Claim. The forum has an interest in protecting the legal rights of its residents and affording injured plaintiffs generous access for litigating claims against tortfeasors. If the alleged tortfeasor and victim are non-residents of Canada, there are no important interests to protect the legal rights of the Canadian residents pursued by this claim.
The Connection Between The Forum And The Defendant. The tort took place in British Columbia but a large part of the claimed damages (e.g. long term disability, loss of income) occurred at the plaintiff’s residence in Paris, so the damages were largely not suffered in the Canadian jurisdiction. The hospital costs of the plaintiff were all compensated by the insurance company.
Unfairness Of The Defendant In Assuming Jurisdiction. The defendant is twenty years old with no means to fund the legal proceedings and his travel. He does not speak English. It will be more fair for the proceedings to be held by the local court at the place of his residence and in his own language.
Unfairness To The Plaintiff In Assuming The Jurisdiction. The plaintiff is not a domestic, Canadian plaintiff whose rights need to be protected under Canadian law. There was no harm caused to any Canadian resident, investor or other. The hospital bills and related expenses were paid by the insurer for plaintiff which is based in the United States.
Whether There Are Multiple Defendants To The Suit. In this case there were no multiple defendants implicated, the sole defendant was a resident of the Czech Republic.
The Court’s Willingness To Recognize And Enforce An Extra Provincial Judgment. This case has raised no intra-provincial Canadian issues.
Whether The Case Is Interprovincial Or International In Nature. The assumption of jurisdiction is more easily justified in interprovincial cases than in international cases, as such the jurisdiction should not be asserted by the Supreme Court of British Columbia.
Comity And The Standards Of Jurisdiction, Recognition And Enforcement Prevailing Elsewhere. This would require further comparative analysis but in the Rome II Regulation (EC) No 864/2007 there is a European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations. From 11 January 2009, the Rome II Regulation creates a harmonized set of rules within the European Union to govern choice of law in civil and commercial matters (subject to certain exclusions) concerning non-contractual obligation. This Regulation provides for a general rule [9]but also for specific rules and, in certain provisions, or an ‘escape clause’ which allows a departure from these rules where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country. Article 4 (2) and 4(3) state:
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply {…}
Although the plaintiff and defendant were both citizens of the European Union, and their habitual places of residence were in different EU member states, it could be argued that the case was more substantially connected/ manifestly more closely connected with the Czech Republic.
3. Did The Court Have A Discretionary Power To Dismiss The Case Based On The Forum Non Conveniens?
Even if the case was not more substantially connected/ manifestly more closely connected with the Czech Republic to seek the dismissal based on the lack of jurisdiction, the consideration in this case was whether the Supreme Court of British Columbia had the discretionary power to dismiss the case based on forum non conveniens.
In Amchem Products Inc. v. British Columbia, [1993] 1 S.C.R. 897 the Supreme Court of Canada outlined the series of factors which the courts should consider in order to determine whether the forum is appropriate. These factors were encapsulated to legislation in s.11 of British Columbia’s Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”). A number of Canadian provinces (not including yet Alberta) have also legislated Amchem, but the factors outlined in s.11 of the CJPTA are generally referred to for guidance in determining the appropriate forum for a proceeding. Section 11 of the CJPTA provides:
11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.
11(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including:
(a) The Comparative Convenience And Expense For The Parties To The Proceeding And For Their Witnesses, In Litigating In The Court Or In Any Alternative Forum
This factor militated towards instituting the proceedings in Europe and rendered the British Columbia Supreme Court as the forum non-conveniens. Both plaintiff and the defendant reside in the European Union, and all the witnesses who saw the accident reside in the Czech Republic. Hearing the case in British Columbia will be very expensive for the parties and witnesses to attend the proceedings in comparison to hearing the case domestically in Europe where all the parties are located.
(b) The Law To Be Applied To Issues In The Proceeding
It is a long standing principle of private international law that in instances where the victim and the person who committed the injurious act have residences in the same country, the law of that country applies. Though this principle of private international law does not apply in the Canadian inter-provincial case (See W. Tetley: The On-Going Saga of Canada’s, Conflict of Law Revolution –Theory and Practice, p.3; Tolofson v. Jensen, [1994] 3 S.C.R. 1022) it applies in a international case such as this when both the alleged tortfeasor and the victim reside in the European Union. The European Union is an economic and political union of twenty-seven member states which include France and the Czech Republic. It operates through a hybrid system of supranational independent institutions and intergovernmental made decisions negotiated by the member states. In the area of tort-law, the law of the European Union does not have transnational unified tort law. The choice of law applicable to conflicts of laws applicable to non-contractual obligations is determined based on Rome II Regulation (EC) No 864/2007. Given that the defendant and the witnesseses are located in the Czech Republic, where the plaintiff must seek the enforcement of the judgment, it could be argued that the case was more substantially connected/manifestly more closely connected with the Czech Republic and the Czech law should be applied to the proceedings. In the Czech Republic, civil and criminal courts share the same jurisdiction to institute these proceedings. There are 86 district courts located in the Czech Republic and the appropriate forum would be a District Court located at the place of resident of the defendant, which would be District Court for Prague 6.
(c) and (d) The Desirability Of Avoiding Multiplicity Of Legal Proceedings and Desirability Of Avoiding Conflicting Decisions In Different Courts. These were not relevant factors because no other court has asserted jurisdiction in the matter.
(e) The Enforcement Of An Eventual Judgment
Though this requires separate analysis,enforcement of the judgment will have to be instituted in the Czech Republic. As discussed above[10], the judgment will not be enforced automatically. The enforcing court will examine the enforceability (ex. proper notice, proper jurisdiction, no violation of the public policy). Especially in a case like this, with the only connection to Canada being that the tort was committed there, the foreign countries may find that the Canadian interpretation of this issue differs from local foreign law, rendering the Canadian judgment unenforceable abroad.
(f) The Fair And Efficient Working Of The Canadian Legal System As A Whole
The defendant sustained most of her damages in Europe where both parties reside. The hospital costs she incurred were already compensated. Though Canadian and British Columbia courts afford plaintiff generous access to the domestic courts, their policy objective is to protect the legal rights of Canadian residents. As both the defendant and plaintiff are non-residents of Canada, the Canadian courts had no interest to adjudicate this claim.
Conclusion
There are several points one can take-out from this case. For the foreign travelers, it shows it is always prudent to reduce their risk and purchasing the liability insurance policy on the arrival to foreign country. While the insurance will have its limits, it would provide protection for the defendant in the foreign jurisdiction which she/he may not be able to afford otherwise. For the lawyers, it confirms a well known fact that international torts and conflicts of law bring some complex issues and that in dealing with this type of cases one has to look not only on the issues at hand but ultimately on the final destination, the probabilities of recognizing and enforcing the foreign judgment.
[1] Annick Versolato Sallet v. Martin Pouba Jr.; Supreme Court of British Columbia, No. 1037315 (filed June 8, 2010).
[2] Andrea Carska-Sheppard is an international trade & business lawyer admitted to practice in the United States, Canada, keeps on the Rolls of Solicitors of England and Wales and is a Registered European Lawyer in the Czech Republic who acted for the defendant in his personal capacity. Any ideas expressed in this article reflect solely the opinion of the author.
[4] The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”, 20 UST 361, TIAS 6638.
[5] There are three forms which are filled up as the part of service pursuant to the Hague Service Convention/ The second form is the “Summary of the Document to be Served” and it should provide the 1) Name and address of the requesting authority; 2) Identities of the parties in the action; 3) Nature and purpose of the document; 4) Nature and purpose the proceedings and amount in dispute, if any.
[6] See also: Enforcement of Judgment; Otakar Hájek - “Winning your case is good, effective remedy is better!” Online: http://review.society.cz/index.php?Itemid=2&id=32&option=com_content&task=view
[7] Online: http://portal.gov.cz/app/zakony/zakonPar.jsp?page=0&idBiblio=30396&recShow=70&fulltext=&nr=97~2F1963&part=&name=&rpp=100#parCnt (only in the Czech language)
[8] Article 64(d)of the Act No. 97/1963 Coll (as amended).
[8]
[9] Article 4.1 states that “[u] nless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
[10] Part 1 of this article.