Author Archives: Rudiger Tscherning

About Rudiger Tscherning

LLB (Trinity College Dublin), LLM (International Commercial Law, University of Nottingham); LLM (Energy and Climate Change Law, CEPMLP, University of Dundee); PhD (University of Heidelberg, Faculty of Law); Solicitor (England & Wales); Assistant Professor, Faculty of Law, University of Calgary. Please click here for more information.

Construction Disputes in Major Infrastructure Projects: Guidance from the United Kingdom as Canada moves to Statutory Dispute Adjudication

By: Rudiger Tscherning

PDF Version: Construction Disputes in Major Infrastructure Projects: Guidance from the United Kingdom as Canada moves to Statutory Dispute Adjudication

Statutes Commented On: Construction Lien Amendment Act, 2017 (Ontario); Housing Grants, Construction and Regeneration Act 1996 (England)

Introduction

In the delivery of infrastructure projects, construction disputes give rise to delays and potential cost overruns. This is especially true for major projects in the energy and natural resources sector where the number of parties, cross-jurisdictional components, challenging locations and the scale of the construction works are all contributing factors to a fertile dispute environment. As a result, a specialist dispute resolution mechanism is needed that facilitates the expedited resolution of disputes in parallel to the continuation of the construction works. Statutory dispute adjudication provides parties with that specialist mechanism. It allows for a fast, project-accompanying alternative dispute resolution mechanism that results in an interim binding decision by an independent adjudicator. The intention of dispute adjudication is to de-escalate a dispute. The parties enter into mandatory negotiation of their dispute with the benefit of the adjudicator’s decision. Following the lead of the United Kingdom and elsewhere, Canada has recently taken steps towards introducing statutory dispute adjudication for the construction industry in this country. This post sheds light on those developments, outlines the key features of statutory dispute adjudication, and reflects upon what Canada can anticipate based upon the experience of the United Kingdom. Continue reading →

Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

By: Rudiger Tscherning

PDF Version: Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

Case Commented On: Thompson v Thompson, 2017 ABCA 299 (CanLII)

On November 9, 2017, the Supreme Court of Canada (SCC) will hear an appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts here and here.

The appeal in Balev involves the key issue of whether the habitual residence of a child can change for purposes of the Hague Convention during the period of a father’s time-limited consent (which permitted the children to attend school in Canada). If so, the mother in that case would not have wrongfully retained the children in Ontario within the Hague Convention’s prompt return mechanism. The appeal is likely to engage questions around how best to determine the habitual residence of a child. Should it be through a “child-centered” approach, a “parental intentions only” approach, or both? Continue reading →

Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

By: Rudiger Tscherning

PDF Version: Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

Case Commented On: Office of the Children’s Lawyer v John Paul Balev and Catherine-Rose Bagott, Supreme Court of Canada, Leave to Appeal (37250)

Background

In an earlier post­­­­­­­, I discussed the decision of Balev v Bagott, 2016 ONCA 680 (CanLII) and concluded that the ONCA was correct in its strict application of the ‘prompt return’ mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980. This meant that a ‘time-limited’ consent by one parent to relocate a child (on the facts, from Germany to Canada) could not amount to a unilateral change of the child’s ‘habitual residence’ during the consent period. As a result, the retention of a child after the expiration of a consent period constituted a wrongful removal or retention in breach of the Convention mechanism.

Update

On April 27, 2017, the Supreme Court of Canada (SCC) granted leave to appeal from the judgment of the Ontario Court of Appeal (ONCA) without reasons. It also granted a motion to admit fresh evidence. Significantly, the SCC ordered the appeal to be expedited. It further directed the parties to advise in writing of any changes that might affect the record, in particular with respect to the current circumstances of the children and the custody proceedings in the courts in Germany. Continue reading →

Canadian Mining Operators Abroad – Corruption as a ‘Real Risk’ Factor in Forum Non Conveniens Applications

By: Rudiger Tscherning

PDF Version: Canadian Mining Operators Abroad – Corruption as a ‘Real Risk’ Factor in Forum Non Conveniens Applications

Case Comment On: Garcia v Tahoe Resources Inc., 2017 BCCA 39 (CanLII)

In Garcia v Tahoe Resources Inc., 2017 BCCA 39 (CanLII) the Court of Appeal of British Columbia reversed an order which had granted Tahoe Resources Inc. (Tahoe) a stay of proceedings on grounds of forum non conveniens. The claim brought against Tahoe concerned the shooting of local protesters by security guards at Tahoe’s Guatemalan mining operation. The Court of Appeal held that the possibility of corruption in the Guatemalan legal system raised a real risk that the claimants would not obtain a fair trial, and therefore concluded that British Columbia was the “more appropriate forum”.

The decision raises a number of important issues, particularly for the Canadian energy and natural resources sector. The decision has the potential to undermine the attractiveness of Canadian jurisdictions as preferred venues for the registration of mining companies that engage in international activities. Tahoe’s registered office is in Vancouver which gave rise to jurisdiction simpliciter. The decision is also noteworthy from a private international law perspective. Firstly, the effect of the judgment is that serious doubt has been cast over the reliability of the legal system of an entire country, thereby raising issues of comity upon which the functioning of private international law depends. Secondly, the case marks the acceptance of the English test of ‘real risk’ of judicial unfairness as a factor in Canadian forum non conveniens analysis. Lastly, the BCCA focused on the close alignment between international resources companies and their host state governments and considered that the context of extensive local opposition to a mining project was a factor that pointed to British Columbia as the more appropriate forum. Continue reading →

International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

By: Rudiger Tscherning

PDF Version: International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

Case Comment On: JP v TNP, 2016 ABQB 613 (CanLII)

Introduction

In an earlier post, I discuss in detail the objective and mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501, to discourage the wrongful removal of a child from his or her habitual residence and the mechanism of ‘prompt return’ of the child to his or her habitual residence. In this post, I revisit the topic of international child abduction to discuss the decision of JP v TNP, 2016 ABQB 613 (CanLII) and the “grave risk” exception in Article 13(b) of the Convention. This exception can be invoked in ‘prompt return’ applications where a parent alleges that the child would be exposed to an “unreasonable and grave risk of physical and psychological harm” if the court ordered the child’s return to his or her habitual residence. In JP v TNP, the Court of Queen’s Bench of Alberta struck a fair balance between the competing interest of the child and the overall objective of discouraging international child abductions. Continue reading →