In Football Association Premier League Ltd. and Others v. QC Leisure and Others and Karen Murphy v. Media Protection Services Ltd., Cases C-403/08 and C-429/08 – the dubbed “Murphy’s Law” case – Kokott concluded that European Union (“EU”) law does not prohibit live football matches from being shown in UK pubs through foreign broadcasters.  Moreover, she found that contractual provisions that prevent conditional satellite access devices licensed to one EU Member State from being used in another Member State restrict the EU fundamental freedom to provide services set out in Article 56 of the Treaty on the Functioning of the European Union (the “TFEU” – PDF).  (The other three freedoms are the freedom of movement of people, goods and money.)  An ECJ ruling similar to Kokott’s opinion could create broad implications for international copyright law.

Pub fined £8,000 steps up its game

It all began when Karen Murphy, the landlady of The Red, White and Blue Portsmouth, England pub found an alternative to paying the more than £1,000 Sky Sports monthly subscription to show Football Association Premier League (“Premier League”) matches on her pub television.  Instead, she subscribed to NOVA, a Greek satellite broadcaster, for around one tenth of the Sky subscription.  She was sent a Greek decoder card and soon began showing the Premier League football games in her pub.

Here’s the problem: in its licensing agreement with the Premier League, NOVA was clearly prohibited from supplying the decoder cards outside of Greece.  Granting sports broadcasting rights on an exclusive territorial basis was a common commercial practice throughout Europe.  In the UK, Premier League broadcasting rights were granted exclusively to Sky Sports and ESPN.  As a result, Media Protection Services was soon knocking on Ms. Murphy’s door, and the landlady eventually found herself at the centre of criminal proceedings and fined almost £8,000 for using an “illicit access device” contrary to EU Directive 98/84.  Article 4 states:

Infringing activities

Member States shall prohibit on their territory all of the following activities:

(a) the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices;

(b) the installation, maintenance or replacement for commercial purposes of an illicit device;

Article 2(e) defines an “illicit device”:

Definitions

For the purposes of this Directive:

….

(e) illicit device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider;

Ms. Murphy appealed to the ECJ, claiming the Premier League had breached the EU free movement of goods and services by restricting her choice of satellite broadcast providers.  The Premier League, on the other hand, argued that Ms. Murphy and NOVA had infringed EU copyright law by supplying and using an illicit access device, and by communicating a copyrighted work to the public by wire or wireless means without authorization, contrary to Article 3(1) of Directive 2001/29.

The Free Movement Advantage

In her opinion, Kokott immediately discounted the argument that Ms. Murphy’s Greek decoder was an “illicit device” under Directive 98/84.  She concluded that a device that was “designed” or “adapted” according to Article 2(e) meant that it was manufactured or modified “with the intention” of providing access to a protected service without the authorisation of the service provider.  Because the Greek decoder was made with the consent of the Premier League and only sold with conditions on its use, the product itself was not an “illicit device.”

Moreover, Kokott stated that showing the Premier League games in a pub did not constitute a “communication to the public by wire or wireless means” in EU law.  She found that the EU legislature had yet to adopt a Berne Convention provision that identified the transmission of works “by loudspeaker or any other analogous instrument” as “public communication” of those works.  Therefore, EU law had yet to contemplate situations in which the public was physically present at the place where the communication originated.  Kokott thus concluded that a copyrighted work was not communicated to the public by wire or wireless means where it was “shown, free of charge, via a single television screen and speakers to members of the public present on the premises.”

Most importantly, Kokott concluded that provisions that made broadcasting rights territorially exclusive actually contravened the EU fundamental freedom to provide services by partitioning and eliminating the internal market.  She further held that such agreements pursued an “anti-competitive object” under Article 101(1) of the TFEU and could frustrate the TFEU’s objective of achieving the integration of national markets into a single EU market.  Kokott challenged the Premier League’s objections by pointing out that users such as Ms. Murphy did pay fees for the Greek decoder.  NOVA may have breached its licensing agreement with the Premier League, but that was a contractual dispute that should have been restricted to the contracting parties – an issue that may now be moot, as Kokott’s opinion effectively questions the place of such provisions in EU law at all.  Although the Advocate General noted that this did not preclude national laws from prohibiting specific communications in pubs, she warned that the restriction on the freedom to provide services could not be “disproportionate” to the share of the protected rights to the broadcast.

“Europe,” the True Champion

The ECJ’s pending judgment will be an intriguing resolution, not merely as a potential blow to European sports broadcasting giants, but as a monumental decision in the EU’s course to becoming a united European economy.

In my opinion, Kokott’s advice meaningfully overlooks immediate wrongs in favour of the grand, European scheme.  There is no question that NOVA had breached its licensing contract with the Premier League.  It supplied numerous subscribers outside of Greece with decoders contrary to the agreement and even created a false name and residential address to overcome the contractual territorial restrictions.  Kokott has also adopted a unique interpretation of EU copyright law.  From an everyday perspective, a television broadcast undeniably constitutes a communication and patrons of a bar are naturally members of the public.  From a legal perspective, current Canadian law holds that a work is “communicated to the public” where: (1) it is intended to be communicated to the public, and (2) the communication is actually received by one member of the public.  Surely NOVA, if not Ms. Murphy, intended the broadcast to be – and it was, in fact – viewed by the public.  A viewing does not suddenly cease to be a communication merely because the audience is physically present at the premises or because the viewing is provided free of charge.  These factors have not historically precluded copyright infringement.

Rather, Kokott’s emphasis on the free movement of services and the expansion of an internal European market sets this case up as the precipitous demise of well-established commercial practices in the pursuit of grand, European Union ideals.  There is no doubt that major broadcasting companies will take an initial hit if the ECJ chooses to adhere to Kokott’s advice.  Consider that Sky and ESPN’s domestic contract with the Premier League has been estimated to be worth £1.78 billion pounds (CAN $2.82 billion dollars) over three years.  That value would drop if Premier League could no longer guarantee exclusive national rights.  Or would it?  A ruling in favour of the freedom to provide services could disincentivize Premier League from contracting again with minor national broadcasters such as NOVA.  Rather, if Premier League were required to license Europe-wide broadcasting rights, there would only be a handful of broadcasting companies large enough to afford the contract.  Although Kokott’s opinion has sought to diversify the European market, it could effectively squeeze out smaller national companies vying for football broadcasting rights.

“Murphy’s Law” is hailed as the case that will protect the European consumer.  But it may be that regardless of the declared winner, the European consumer is bound to lose.

Update: On October 4, 2011, the ECJ released its decision, declaring that national laws which prohibit the import, sale, or use of foreign decoder cards are contrary to the EU fundamental freedom to provide services. It also ruled that while live matches themselves are not protected by copyright, “surrounding media” such as match highlights, the Premier League anthem, and other graphics are. The full judgment can be found here.

The original newspaper article entitled, “Detective accused of taking bribes from Russian exiles. Police investigating the alleged sale to a security company of intelligence on the Kremlin’s attempts to extradite opponents of President Putin, Michael Gillard reports” resulted in a lawsuit for libel against the newspaper for the print and online publications of the article.

The EWCA overturned the Queen’s Bench decision that held in 2009 that the Times could rely on the Reynolds defence for qualified privilege. This defence was originally established over a decade ago by the House of Lords in another case involving journalists at the Times Newspaper for potentially libelous statements in a political discussion: Reynolds v. Times Newspaper Ltd. [1999] 3 All ER 961 (“Reynolds”). The Reynolds defence allows a journalist to raise this defence by proving qualified privilege based on ten criteria:

1. The seriousness of the allegations
2. The nature of the information and the extent to which the subject matter is a matter of public concern
3. The reliability and motivation of the sources of information
4. The steps taken to verify the information
5. The status of the information
6. The urgency of the matter
7. Whether comment was sought from the claimants
8. Whether the article contains the claimants’ side of the story
9. The tone of the article
10. Other circumstances

After prior judicial affirmation, most notably, by Jameel v. Wall Street Journal Europe [2006] UKHL 44, the application of this test has now come into question as a result of the EWCA decision in Flood. The EWCA in Flood applied the Reynolds defence to conclude that the defendant did not meet each criterion, namely, that “the journalists do not seem to have done much to satisfy themselves that the allegations were true” when they wrote the article. The allegations were “no more than unsubstantiated, unchecked accusations from an unknown source coupled with speculation.” Amid the “serious allegation of crime or professional misconduct” the article ultimately constituted irresponsible journalism. Others suggest the narrowing of the application of the Reynolds defence by raising the standard of journalistic verification.

Equally concerned for its reputation, the Times is now appealing this decision to the UK Supreme Court. The Times application claims that the EWCA misapplied the criteria of the Reynolds defence and that the decision is irreconcilable with other judicial applications of the same test. In response, some commentators lament that “Reynolds is dead,” while the Times wants the UK Supreme Court to settle the issue to bring this case in line with prior UK jurisprudence and to bring back professionalism as a defence to aid journalists in the reporting of sensitive news.

Speaking of reporting sensitive news, Maclean’s “Too Asian” article has come across from recent scrutiny in Canada for “irresponsible” journalism for being “Too Brazen.” As mentioned in a previous edition of Amici Curiae here at The Court, Canada’s national weekly news magazine, Maclean’s Magazine recently published an article expressing concern about Canadian university campuses enrolling a high population of Asian students. It would be interesting to test if hypothetically whether the Maclean’s article would pass all ten criteria of the UK Reynold’s test in the Canadian news context.

Judicial History

Prior to the FC decision, Amazon succeeded over ten years ago at the regulatory level when the U.S. Patent Examiner’s Office granted two American patents for the applicant’s “one-click” business method. Amazon then tried and failed to patent the same concept in Canada.

Amazon appealed to the FC an earlier decision by the Canadian Commissioner of Patents (the “Commissioner”) that denied the US-based multinational electronic commerce company a patent for a single mouse click— dubbed a “one-click” business method for the purchase of online items.

Last month, the Court concluded that business methods are patentable in Canada as The Commissioner’s decision was quashed by the FC and sent back down for expediated re-examination.  In suggesting patentable rights for this business method, the FC considered Amazon‘s monopoly rights over a one-click business method, which would allow Amazon to sue other users for patent infringement. This decision therefore has pressing implications (excuse the pun) for internet e-commerce— a massive industry based on millions of clicks per day.

Is Internet Shopping a Patentable Invention?

Over ten years ago, Amazon applied to the Canadian Patent Examiner (the “Examiner”) to patent an invention entitled “Method and System for Placing a Purchase Order via a Communication Network.” It had already claimed priority on two similar American patents. Amazon’s patent application described the usual process of “internet shopping:”

The customer visits a website, enters address and payment information and is given an identifier stored in a “cookie” in their computer. A “server” (a computer system operating a commercial website) is able to recognize the “client” (customer computer with the identifying cookie) and recall the purchasing information which is now stored in the vendor’s computer system. The customer can thus purchase an item with a “single click” – the order is made without the need to ‘check out’ or enter any more information.

After a lengthy process, Amazon’s patent application was rejected by the Examiner on June 1, 2004 on the basis of “obviousness” and “non-patentable subject matter.” On March 4, 2009, on appeal, the Commissioner rejected the Examiner’s findings on obviousness, but upheld the second part of the decision regarding non-patentable subject matter. It cited s.2 of the Patent Act that defines a patentable “invention” as “any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.” Unperturbed by the sting of Canadian patent rejections, Amazon appealed to the FC.

What Everyone Else Decided

Like the patent regulators, the FC also reviewed statutory subject matter available for patents under the Patent Act. In reaching a decision to overturn the Commissioner’s findings, Justice Phelan for the FC concluded that a “business method” is a patentable subject matter that allows a patent to be issued in appropriate circumstances.

The FC was wary of this as a novel case. In analysing the Commissioner’s decision, Justice Phalen criticized her application of foreign jurisprudence, especially the British statute. Justice Phalen also remarked that “the language used in the American and Canadian [Patent] Acts to describe patentable subject-matter is almost identical.” He referred to British, European and Australian judicial approaches as lacking a “technical test” that points mostly to a “horribly imprecise concept” that “lacks authority in Canada for a ‘business method exclusion.” Nevertheless, the Court was persuaded by the fact that this invention was found to be patentable subject matter in other jurisdictions particularly in the United States and Europe. The Court further noted that “the practical application requirement ensures that something which is a mere idea or discovery is not patented— it must be concrete and tangible.” As such, the Court was driven by a “practical application” requirement despite a lack of established jurisprudence on the matter in Canada.

Narrowing the Definition of “Patentable” Subject Matter

A “practical application” requirement is troubling because the FC did not consider an in-depth analysis of policy considerations, particularly for a potential floodgate of innocuous user-technology-interactions to be granted patent protection. Technological inventions consist of both concrete and abstract processes occurring inside a computer information system and the free-flowing nature of the internet. It’s almost absurd that a single-mouse click is the “concrete and tangible” aspect of the patent under consideration. This conclusion forgoes the practicality of clicking a mouse on a website as a required actions ranging from simple web-surfing to actual purchases conducted online.

In light of other open-ended jurisprudence, such as Bilski, Canadian courts seem just as confused about how to approach “business method patents,” especially when these inventions involve processes intertwined with technology. Instead of leaving the common law courts to speculate about a legislative exclusion, it would have been safer in my opinion to hold off granting a business method patent until a clearer Canadian test is established. What may be required is legislative reform to provide additional clarity about how abstract inventions such as “business methods” narrow an overly broad definition of patentable subject-matter.

SCC’s Torstar Corp. involved Canada’s largest daily newspaper, the Toronto Star and its reporter being sued for libel under the tort of defamation. Peter Grant, a golf course developer took offence to an article entitled, “Slicing through the rules: Genesis of a land deal – How [former Ontario Conservative Party premier Mike] Harris’ friends overcame fish habitat controls to build their dream.”  The article criticized a proposed private golf course development for its environmental impact and behind the scenes political influence. Torstar Corp. worked its way up to the SCC when the trial court rejected the possibility of an “expanded qualified privilege defence based on a concept of public interest responsible journalism.” The Court of Appeal then overturned the trial decision on a procedural matter that left a question of law about a new “responsible journalism defence” to the jury. The case then arrived at the SCC to decide the nature of a new defence for journalists. After much deliberation, the SCC expanded a new qualified privilege defence, dubbed the “defence of responsible communication,” that seeks to protect the public interest while allowing for defenses of truth and fair comment from going too far by allowing journalists with a carte blanche to write unfounded statements without limits in the name of this new defence.

The debate for journalistic press freedom continues across the pond in the UK. This year, the England and Wales Court of Appeal (Civil Division) (“EWCA”) released British Chiropractic Association v. Dr. Singh [2010] EWCA Civ 350 (“BCA v. Dr. Singh”) where a defence for responsible journalism suffered from non-existence, but succeeded on the basis of a clarified defence of fair comment.

What’s the difference between fact and honest opinion anyway?

In this case, the British Chiropractic Association (“BCA”), a British medical association consisting of a membership of chiropractic professionals, took offence to science journalist Dr. Simon Singh’s article entitled “Beware the Spinal Trap” published in a UK national daily newspaper, The Guardian where he was employed. His article, featured in the “Comment and Debate” section, aimed criticism at the BCA particularly in the following passage:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

At issue in this case was whether Dr. Singh’s assertions were based on fact and therefore consisted of fair comment. The elements for the defence of fair comment to succeed require the defendant to show that the offending statement amount to an opinion that was honestly held and based on verifiable, true facts. As a science writer, the notion of fact floated to the surface. In separating the definition of fact and comment, the EWCA considered the alleged defamatory words as to “what they actually mean” and then compared it whether it “has crossed the boundary of reasonableness.”

Fair comment “decayed” with imprecision

Lord Judge, Lord Chief Justice of England and Wales considered the fact that BCA sued Dr. Singh and not The Guardian, a prominent British newspaper for which the article was produced. The EWCA noted this as a clear intention by BCA to silence one of its critics, rather than attack the nature of the publication itself. With this in mind, the court embarked upon its analysis by differentiating “matters of verifiable fact” from comment, asking: was there evidence to support Dr. Singh’s alleged material claims?

It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions.

The EWCA then went on to analyse the meanings of the word words “not jot of evidence,” “bogus,” and “happily” to conclude that fact and comment could not be precisely delineated:

Our decision does not seek to collapse or erode the general distinction between fact and comment: it seeks to relate the distinction to the subject-matter and context of the particular article and the dispute to which it relates.

The EWCA ruled in favour of Singh by dismissing the lower court’s reasoning:

…the [lower court] judge erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA’s claims as an assertion of fact. It was in our judgment a statement of opinion, and one backed by reasons.

Dr. Singh won his appeal and the judgement closed with what can be interpreted as a clarification of the application of the defence in the UK:

…fair comment may have come to ‘decay with … imprecision.’ ‘Honest opinion’ [however] better reflects the realities.

Consequently, this case clarifies the defence of fair comment as not simply requiring proof of an “honest opinion.” The defendant must show that an honest opinion was reasonably made based on verifiable facts. As such, this ruling can provide persuasive support to Canada’s defence of responsible journalism that protects future allegations of defamation against journalists. Journalistic press freedom may have drifted off the mark that today ought to be protected by factual truths, limited from unbridled defamatory statements, and in support of freedom to express honest opinions in published material.

Troubling implications for journalistic press freedom

Two weeks after Singh won his appeal, the BCA issued a press release stating that it dropped this lawsuit against him. However, following the costly rigours of litigation, the implications of defamation lawsuits against journalists continue beyond the courtroom’s legal debate as Singh is reported to have since left The Guardian. It is also a reminder of the power of SLAPP (“Strategic Lawsuits Against Public Participation”) where a litigant brings a lawsuit without necessarily the expectation of winning a case— it uses the threat of actual litigation as a means to silence criticism.

In my opinion, these post-trial results in the UK indicates the dangers of lawsuits that may make journalists weary of liability that subsequently undermines their sense of press freedom. This is compounded by the risk of unemployment at media outlets by the simple threat or actual legal proceeding, regardless of the outcome. Thankfully, based on the outcome of this case, private organizational interests did not weigh heavier in the judge’s mind than publishing verifiable material facts mixed with opinion and supported by a refreshed defence of fair comment. Canada previously opened its doors slightly wider than UK’s BCA v. Dr. Singh with defamation reform led last year by SCC’s Torstar Corp., yet given that our jurisprudence quotes widely from British legal developments, this UK case could have positive implications for a more precise application of fair comment Canada that upholds the “defence for responsible communication.” Responsible journalists, including this writer at The Court, can only hope that creating and upholding Canada’s new responsible journalism defence in favour of freedom of expression will continue to protect future reasonable commentary by journalists on a wide variety of media platforms— including this one!

At issue in this case, were “business method patents” which confer a monopoly on the exclusive use of new techniques of conducting business transactions, processing financial data, or operating an enterprise upon approval by a national patent office. Allowing these types of patents is particularly relevant in e-commerce and IT software industries that rely heavily on abstract business methods that are not traditional engineering inventions normally eligible for patent protection.

A month after Bilski, the United States Patent and Trademark Office (“USPTO”) released a Practice Notice (PDF link) designed to help examiners and practitioners determine subject matter eligibility under the Patent Act, 35 U.S.C. s. 101 (the “Act”).

Bilksi reached the Supreme Court after an appeal from the Federal Circuit in finding that Bilski’s application was not patent eligible. In this decision, the majority, led by Justice Kennedy, left open the door for business method patents, and, contrary to the decision of the Federal Circuit, held that the machine-or-transformation test for subject matter eligibility in processes was only a “useful clue” and not the only test.

The minority, led by Justice Stevens, issued a strongly worded concurring opinion that did not agree with the reasoning of the majority. The minority concluded that business method patents granted overly broad monopoly protection which would effectively stifle innovation and prejudice competition.

Notably, this case was a milestone for Former US Supreme Court Justice Stevens – Bilski was his last IP decision before retiring at the age of 89 after serving a record-breaking 34 years on the bench.

Background and Facts: “The Machine-or-Transformation Test”

Business partners, Bernard L. Bilski and Rand A. Warsaw appealed a series of decisions starting with a rejected patent application by David J. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, that their patent for a business method in their enterprise was ineligible for patent protection. As stated in their brief for the petitioner (PDF link), they sought to patent their invention, the “Energy Risk Management Method:”

[Bilski’s patent application] describes a method in which energy consumers, such as businesses and homeowners, are offered a fixed energy bill, for example, for the winter so they can avoid the risk of high heating bills due to abnormally cold weather. An intermediary or ‘commodity provider’ sells natural gas, in this example, to a consumer at a fixed price based on its risk position for a given period of time, thus isolating the consumer from an unusual spike in demand caused by a cold winter. Regardless of how much gas the con-sumer uses consistent with the method, the heating bill will remain fixed.

Bilski petitioned the patent examiner for the protection of this claimed invention that explains how commodities buyers and sellers can hedge price fluctuations for a series of financial transactions in the energy market. Bilski tried to patent this business method which was rejected by the patent examiner whose decision was affirmed by the Board of Patent Appeals and Interferences as well as by the Federal Circuit.

As cited by the Court of Appeal in Bilski, patenting business methods was first tested in the case of State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1373 (“State Street”) under the Act. In rejecting the test in State Street that determined patentability based on whether the invention produced a “useful, concrete, and tangible result,” the Supreme Court applied the “machine-or-transformation test” to determine if there is indeed patentable subject material.

In this test, a “process” is patentable if it is (1) intrinsically linked to a “particular machine or apparatus” or (2) “transforms a particular article into a different state or thing.” Emphasis in the lower courts was placed on this test as the only one that must be satisfied to permit the patent to be registered. As an abstraction, rather than a traditional patentable “process” as enumerated in the Act, Bilski’s business method failed at the Appeal Court level and the case landed in the laps of the U.S. Supreme Court.

Majority suggests wide horizons for “business method patents”

Kennedy, J., with Roberts, C.J., Thomas, Alito, JJ., joining the opinion in full and Scalia, J., in part agreed that business methods may be patentable. Justice Kennedy leading the majority overturned the lower court decisions by stating that there is not only one test, but that other tests can be possible:

The machine-or-transformation test is not the sole test for patent eligibility under s. 101. The Court’s precedents establish that although that test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible ‘process’ under s. 101.

The majority also expressed concern for opening the floodgates to a whirlwind of patents for an infinite number of business methods in an “Information Age” dominating many business tasks:

If a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.

However, Justice Kennedy did not outline a specific test or suggest what shape other tests could take which left the intellectual property community at a loss for definitive answers until USPTO’s recent practice notice provided some practical clarity to an otherwise open-ended decision.

Concurring Dissent says business method patents are “comical”

Stevens, J, Breyer, Sotomayor, JJ for the concurring dissent, on the other hand, came down harshly on even the possibility of business method patents. In the eyes of Justice Stevens, Bilski’s business method was too abstract and therefore not patentable. He criticized the majority for failing to come up with a clear test besides the “machine-or-transformation” criteria:

The Court [the majority], in sum, never provides a satisfying account of what constitutes an unpatentable abstract idea. Indeed, the Court does not even explain if it is using the machine-or-transformation criteria […] This mode of analysis (or lack thereof) may have led to the correct outcome in this case, but it also means that the Court’s musings on this issue stand for very little.

While Justice Stevens concurred with the majority in the result, he dissented in his reasoning by giving a resounding “no” to business method as processes worthy of patent protection. By using the logic of protecting business methods as a “process,” he illustrated examples that such permission “would render s. 101 almost comical.” He stated:

A process for training a dog, a series of dance steps, a method of shooting a basketball, maybe even words, stories, or songs if framed as the steps of typing letters or uttering sounds—all would be patent-eligible.

He too was concerned for the floodgates opening to inappropriate patenting of processes that proliferate many businesses:

If business methods could be patented, then many business decisions, no matter how small, could be potential violations. Businesses would either live in constant fear of litigation.

Patent policy struggles to adapt to an era of information-based inventions

Business method patents are currently controversial in the U.S, which impacts global markets including Canada. Canadian patent law is affected by the U.S legal approach to business methods as would any jurisdiction where business with its multitude of “processes” and “methods” are conducted. Such patents may be overly broad as Bilski’s concurring dissent illustrated; a single business can have countless “methods” to patent.

In my opinion, business method patents can be too broadly construed. Imagine the stock market trying to patent a basic process like a call option or hedging ability for securities. Unmentioned in Bilski was a set of different facts in the patent application of Amazon 1-Click that met with success at the U.S. Patent Examiner’s Office over a decade ago. Their successful patent application for a single-mouse click to purchase online products allowed for an infringement suit brought by Amazon.com, Inc. against Barnes & Noble, who responded that such a patent covering a common method for e-commerce transactions would ruin its business. Interestingly, last year this same patent application failed in Canada and is currently on appeal to the Federal Court.

A U.S. Supreme Court decision favouring these patents could have flooded IP lawyers’ desks with potential patents, strategies, portfolios, investments and ultimately infringements. At its broadest reach, patenting an abstract business method could create justification to patent any number of business exchanges, transactions and models that could limit the flow of capital markets. Potential problems with business method patents, as indicated by Justice Stevens’ dissent, is concern for ensuring competitiveness while balancing it with a monopoly conferred to the inventor of business methods that they wish to protect. Although he does not clearly state a test, Justice Kennedy considers the possibility of these types of patents in order to adapt the patent system to a market shifting from a manufacturing-based to information-based economy.

While a similar test case of this nature has yet to appear on Canadian court dockets, cases like Bilski are fundamentally affecting the shape of the business of patents. In my opinion, the courts need to provide a narrow test that limits the floodgates of patenting just about any business concept ranging from a single-mouse click to an exchange of capital for goods that primarily drives capitalism. Judging from the failure of the Amazon 1-Click patent application in Canada, our courts appear to lean towards Justice Stevens’ dissent that business methods should not be patentable. Indeed, reliance on a U.S. Practice Notice for guidance may only be a temporary solution as some patent-watchers suggest that trade secret protection may offer a better answer.

It is important to note that the question presented to the ICJ solicited its assessment on the declaration’s accordance with international law and not its “legal consequences.” In other words, the ICJ did not consider whether Kosovo could now assume statehood under international law but instead whether it made the declaration of independence in accordance with international law.

A Brief History of the Relationship between Kosovo and the UN

In June of 1999, the UN Security Council (SC) passed Resolution 1244, On the Situation Relating Kosovo, S RES 1244, UN SCOR, 1999, in an attempt to begin to resolve the humanitarian crisis related to the armed conflict in Kosovo. The resolution provided for a civilian and security presence in Kosovo with the goal of developing democratic self-governing institutions. It also included a call for the Federal Republic of Yugoslavia (now Serbia) to withdraw its forces and for the Kosovo Liberation Army (KLA) to demilitarize. In addition, a constitutional framework was instituted under which the UN and Kosovo shared legislative and governing authority.

From 2005 to 2007, during which the UN conducted a thorough review of the situation, and following unsuccessful negotiations with Serbia and Kosovo, it was concluded that the “only viable option for Kosovo is independence…” Following that, elections were held for the Assembly of Kosovo (the national governing body) and municipalities. The Assembly met in an official capacity for the first time in January of 2008. On February 17, 2008, it adopted a declaration of independence. In part, it stated:

We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of [the] UN…

Serbia claimed that the declaration was legally ineffective and represented a “unilateral secession of a part” of its territory. The National Assembly of Serbia declared it null and void.

A request for an advisory opinion on the declaration of independence was submitted by the General Assembly of the UN. The ICJ accepted written and oral submissions by 35 member states (including Iran, the United Kingdom, the United States and Slovakia) regarding their opinion on the issue.

The ICJ Rules in Favour of Jurisdiction

The first issue considered by the ICJ was whether it had the jurisdiction to provide the advisory opinion. Article 65, paragraph 1 of the Statute of the International Court of Justice states:

The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request…

To find that it possessed the jurisdiction to provide an advisory opinion, the ICJ had to satisfy the criteria set out in Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, [1982] I.C.J. Rep. 333 (pdf). Accordingly, if the advisory opinion was requested by an organ of the UN and regarded a legal question “arising within the scope of the activities of the requesting organ” it was within the jurisdiction of the ICJ. (The UN has six principle organs including, among others, the SC and the ICJ).

It was argued by detractors that pursuant to Article 12, paragraph 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7. (“UN Charter”), the General Assembly “shall not make any recommendation with regard…” to “any dispute or situation” currently under consideration by the SC. Thus, since the SC had been the primary UN organ handling the Kosovo conflict, a related advisory opinion was beyond the scope of the ICJ. The ICJ quickly and reasonably disposed of this counter-argument by noting that an advisory opinion is not a “recommendation.”

Concerning the competence of the organ to make the request, the ICJ referred to Article 96 of the UN Charter which authorizes the General Assembly to make requests for advisory opinions. Moreover, Article 10 refers to the scope of the matters to come before the General Assembly, which include the circumstances at issue in the present case, and Article 11 states that the General Assembly has the competence to consider “any questions relating to the maintenance of international peace and security brought before it by a Member of the United Nations…”

Finally, the ICJ ruled that questioning whether a declaration is in accordance with international law is clearly legal in scope. It was countered that a declaration of independence is a political act governed by domestic law and that the ICJ only dealt with issues of international law. This argument was rejected by the ICJ. While the declaration possessed both legal and political aspects, one did not deprive it of the other. Of course, if accepted, the proceedings would have stopped at this stage and the issue of Kosovo’s independence would have implicitly become a domestic matter.

According to the ICJ, “the Court has a discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met…” Only “compelling reasons” would require that the court decline to provide an advisory opinion. This determination does not care about the “motives behind the request”, whether the “opinion might lead to adverse political consequences”, or that the request came from the General Assembly despite the SC’s lengthy involvement with the Kosovo issue. On the last point, the ICJ stated:

the fact that a matter falls within the primary responsibility of the Security Council for situations which may affect the maintenance of international peace and security and that the Council has been exercising its powers in that respect does not preclude the General Assembly from discussing that situation or, within the limits set by Article 12, making recommendations with regard thereto.

Excluding the General Assembly from discussing or making recommendations on matters being considered by the SC, and thereby requiring the ICJ to deny the request for an advisory opinion, may have had the effect of further concentrating power in the SC. The veto power available to members of the SC already furnishes them with substantial authority relative to the remaining states. To hold that matters already under consideration by the SC could not be discussed by the General Assembly would further distort the imbalance.

In the end, The ICJ reasonably rejected the argument that there were compelling reasons not to provide an advisory opinion. Kosovo has been under UN auspices for a decade or more. It would be illogical that the UN central judicial organ could not provide an advisory opinion on the very situation the UN cultivated through its intervention in the conflict.

The Unilateral Declaration of Independence is in Accordance with International Law

Freed of concerns surrounding jurisdiction and discretion, the ICJ then considered whether the declaration was in accordance with international law but not whether Kosovo had achieved statehood under international law. The ICJ noted the difference by referring to the SCC decision in Reference by the Governor-General concerning Certain Questions relating to the Secession of Quebec from Canada, [1998] 2 S.C.R. 217, where the question, in part, asked if international law provided the right for Quebec to secede from Canada unilaterally, and accordingly, whether Quebec had “a right to self-determination under international law” so that it could secede unilaterally.

According to the ICJ, the international law of self-determination developed in the second half of the twentieth century created “a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation…” It cannot reasonably be argued that the citizens of Quebec have been subjugated, dominated or exploited. This was the crucial difference.

Several member states argued that the principle of territorial integrity set out in Article 2, paragraph 4 of the UN Charter protected the territorial integrity of Serbia. The relevant Article states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

But, as noted by the ICJ, this article explicitly applies to relations between “States.” Kosovo is not a state. Because Kosovo had been subjugated, dominated and exploited its right to self-determination was evident. Therefore, the declaration of independence was ruled to be in accordance with international law.

Finally, in a dissenting opinion by Judge Koroma (pdf), it was argued, in part, that the declaration is contrary to international law and the agreed upon constitutional framework provided under Resolution 1244, and also a violation of the principles of territorial integrity and state sovereignty. Yet, it is curious as to why Judge Koroma did not reference the unique circumstances of the Kosovo situation in terms of the armed conflict. His arguments may stand without this consideration. But, as the majority ruled, it is in those special circumstances that international law supports the right to self-determination.

Recently, Justices Shi Jiuyong of China and Thomas Buergenthal of the United States announced their resignations from the International Court of Justice (“ICJ”), both before fulfilling the nine-year terms they were elected to. As a result, two special elections for their replacements will be held in June and September of this year respectively.

The ICJ, at times referred to as the World Court, is the central judicial branch of the United Nations. Its purpose is to handle the disputes of member states and advise UN bodies. For instance, Australia recently announced that it will challenge Japan’s whaling practices before the ICJ.

The ICJ is composed of 15 Justices who serve terms of nine years. If a judge resigns before that period has ended, the position is filled through a special election. The replacement judges will fulfill the remainder of the retiring judge’s terms.

The Statute of the International Court of Justice (“Statute”) provides the framework under which the ICJ functions. It is comprised of 70 Articles, dealing with, for example, organization (Articles 2 to 33) and procedure (Articles 39 to 64). Article 2 states:

The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.

Article 3 holds that only one nominee per state can be elected to the ICJ. Nominees are normally submitted by the national groups of the Permanent Court of Arbitration, an international dispute resolution body. A consolidated list of nominees is then submitted to the General Assembly and Security Council for election by a majority of all members.

Traditionally, nominees from the permanent members of the Security Council have been guaranteed election. Both China and the US are permanent members therefore it is likely that a nominee from those two countries will be elected to replace the retiring Chinese and American judges.

Presently, the ICJ is an all-male judicial body. In fact, there has only been one permanent female judge. This could change as the US has nominated Joan E. Donoghue to serve the remainder of the term of retiring Judge Thomas Buergenthal. Donoghue is currently the US State Department’s Principal Deputy Legal Adviser. In this role she advises Secretary of State Hillary Clinton in matters dealing with international law. She taught law at the University of California-Berkeley, Georgetown, and the George Washington School of Law. She earned her law degree from Berkeley.

China’s nominee is Xue Hanqin, Chinese Ambassador to the Association of Southeast Asian Nations (ASEAN), Legal Counsel to the Ministry of Foreign Affairs and Member of International Law Commission. Hanqin has an LL.M and J.S.D. from Columbia. She has served as the Chinese Ambassador to the Netherlands and in various legal roles throughout the Chinese Ministry of Foreign Affairs. She has taught law at Wuhan University School of Law and Beijing University.

The nomination of two women is a welcome addition to a presently all-male institution.

Elena Kagan and Judicial Activism

Earlier, TheCourt.ca commented on a replacement for retiring United States Supreme Court Justice John Paul Stevens. As readers may be aware, the President chose US Solicitor General Elena Kagan, and with confirmation hearings scheduled to begin Monday, a brief update on her nomination is warranted.

In recent weeks, the media has reported on documents related to Kagan’s tenure under former President Bill Clinton, served in part as Associate White House counsel. In response, Republicans on the Senate judiciary committee are threatening to boycott the hearings unless they are given time to review the documents. They are also requesting access to 1600 documents not released for reasons of confidentially. As well, the Sunlight Foundation, an organization dedicated to government transparency and accountability, has provided access to Kagan’s emails from her White House days.

Failed Supreme Court nominee Robert Bork has argued that Kagan is not qualified to be a Supreme Court Justice. According to reports, Kagan’s admiration for former Israeli Justice Aharon Barak is seen by Bork as indicative of her activist philosophy.

The typical refrain from the Republicans is that a Democratic nominee will inevitably engage in judicial activism once on the bench. In other words, they will interpret and apply the law with regard to their own personal and public policy views. Conservative judges, however, will supposedly demonstrate judicial restraint.

Judicial activism was measured in a study by Paul Gewirtz and Chad Golder and summarized in an op-ed in the New York Times. According to the authors of the study, judicial activism can be measured by counting the numbers of times a USSC judge has voted to strike down a congressional law. Overall, Gewirtz and Golder came to the conclusion that the more “liberal” justices were the least activist:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %

Kennedy 64.06 %

Scalia 56.25 %

Rehnquist 46.88 %

O’Connor 46.77 %

Souter 42.19 %

Stevens 39.34 %

Ginsburg 39.06 %

Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more “liberal” – Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens – vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Britain has over 7,000 publicly financed religious schools. Under the Equality Act of 2006, such schools are allowed to give preference in busy years to applicants of the school’s own faith, using criteria determined by a designated religious authority. The Jew’s Free School (JFS), a religious Jewish school, traditionally receives far more applicants than it accepts. The school’s present policy is to give priority to children who are recognized as Jewish by the Office of the Chief Rabbi (OCR).

M is the child of a father who is Jewish by birth, and a mother who underwent the Progressive Jewish conversion process. That process is not recognized by the OCR who requires conversion take place through the Orthodox Jewish procedure. As such, since Orthodox Judaism only recognizes a child as Jewish if his mother is Jewish, and according to Orthodox Judaism the mother never properly “converted”, M was not regarded as Jewish and his application was denied.

M’s father E alleges the refusal to admit M to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground of both his and his mother’s ethnicity. JFS defends its action, stating that the criterion used to select students is purely religious and not ethnic in nature. At trial, the High Court of Justice agreed. The Court of Appeal overturned that ruling, on the basis that the admissions test was ethnic in nature and thus discriminatory. Since the test concerned the status of M’s mother rather that M’s personal religious practice, the test could not be said to be purely religious.

Comments

The court’s ruling reveals several problematic issues. To begin with, there is considerable unease with the court’s foray into the religious realm. As Lord Sacks wrote following the court’s decision:

“An English court has declared this rule racist, and since this is an essential element of Jewish law, it is in effect declaring Judaism racist. To be told now that Judaism is racist is distressing. To confuse religion and race is a mistake.”

 Under Orthodox Jewish belief, one’s religious practices are largely irrelevant to their Jewish identity. As Rabbi Yitzchak Shochet famously said, “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish”. Conversely, one can be most devout of faith, but if not born Jewish (or “properly” converted) one would not be perceived as such by the Orthodox community. Ethnicity and the Orthodox faith are inextricably intertwined, and the court’s attempt to separate ethnicity and religious practice inherently misunderstands the relationship between the two.

Be that as it may, the argument is made –not without footing– that the private religious laws must yield when there is an adverse impact on social welfare. The problem is the Court of Appeals’ conclusion that the admission criterion was an ethnic test is simply untenable. The first difficulty is understanding what ethnicity means. The Court of Appeal, when attempting to define what constitutes racial discrimination, refers to the House of Lords decision Mandla v. Dowell-Lee, [1983] 2 AC 548. In that case, Lord Fraser notes that an ethnic group is defined as a distinct community sharing certain characteristics. He goes on to state that a group is defined by shared characteristics, and membership in such a group is also open to members joining through a conversion process. Following that reasoning, the Court of Appeal concludes that (a) Jews constitute a racial group defined by ethnic origin and additionally by conversion and (b) to discriminate against a person on the ground that he or someone else is not Jewish is to discriminate on racial grounds.

Two points are relevant here. First, the court conveniently does not take notice of the following line from Mandla:

Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.

The very issue of the case at hand is that the group (the Orthodox Jewish community) had not accepted M’s mother into the group by virtue of the wrong conversion process. Second, to discriminate on ethnic or racial grounds implies an almost immutable, or constructively immutable, characteristic that serves as the basis of the discrimination.  In contrast, if M’s mother had undergone the Orthodox conversion process, she would have been recognized as Jewish. There was nothing inherently “ethnic” in the decision; rather, it was the practice which formed the basis for inclusion in the group. The conversion process itself is an inherently religious practice, rather than ethnic.  A possible response is that focusing on the mother’s actions rather than M’s means that the criterion is not religious in nature. Yet, were JFS to deny a child admission on the grounds his or her parents were born Jewish but did not practice religiously, can it be said that the decision would be “ethnic” rather than religious? My point is solely that the OCR took issue not with identity, but with the practice of converting Progressive rather than Orthodox; as such, the issue goes to religion rather than ethnicity. In the alternative, the two are so deeply intertwined that any religious criterion is by definition discriminatory.

A further response is that, by accepting the government’s money, JFS’ admissions policy became a social policy rather than a religious policy. If a school disliked the conditions associated with funding, it would be free to operate privately and determine their own admissions policy. That being said, it is important to examine the social goals the government is advancing. The Secretary of State for Education is intervening on behalf of the respondents, JFS, to argue that a faith-based admission criterion pursues a legitimate aim. The underlying policy purpose is to add to the diversity of choice for parents, and to enable children to be educated within the State sector in accordance with the values of their faith. Since such criterion are the only way to further that purpose, finding them discriminatory would take away from this social purpose. Additionally, Parliament has implicitly endorsed this practice through the enactment of the Equality Act of 2006, despite its potentially discriminatory effects. Accordingly, the appropriate balancing of competing social interests should be a matter for Parliament to decide, rather than the courts. The faith-based admission criterion at issue, therefore, in fact supports sound social policy rather than running contrary to it.

Comparative Law

A similar case occurred during the late 1980s in the Netherlands. In the Maimonides case, the Hoge Raad (the highest civil law court) accepted that an Orthodox Jewish school could exclude a boy from a non-religious family because it was based on consistent policy directly related to the religious foundation of the school. It would seem that a “religious” but non-Jewish individual could also be excluded because it doesn’t fit within the religious foundation of the school.

In Canada, the courts have been prepared to value religious rights over certain other social policy concerns. In Dhillon v. British Columbia, [1999] B.C.H.R.T.D. No. 25, for example, the court held the religious rights of Sikhs to wear a turban trumps other safety concerns behind the helmet laws at issue. The fact that most religious education is not eligible for public funding (see Adler v. Ontario, 1996 CanLII 148 (S.C.C.)) largely prevents the issue from arising. If such an issue did arise, legislation similar to the Equality Act of 2006 would likely be held to infringe s. 15 because religion has been held to be a constructively immutable ground (as in Corbriere v. Canada, [1999] 2 S.C.R. 203.) While the Secretary of State points to an important policy objective, it is doubtful in the Canadian context whether similar legislation would constitute a minimal impairment under the proportionality test of s. 1.

Conclusion

If the newly minted Supreme Court is looking to make its mark, it has such an opportunity when it releases judgment on this case. I, for one, am curious to see which direction the Court will choose to take: whether it will sit back and largely defer to Parliament’s social policy objectives, or whether it will try to carve out the appropriate spheres religion plays in society. The clash between different religious conceptions is almost always inevitable. In Canada, we pride ourselves on a widely diverse culture that is willing to accept a broad spectrum of beliefs. In the quest to increase inclusiveness, however, we inevitably run up against religions that by definition are exclusive. By granting equality with one hand, consequently we take away autonomy with the other. Canada –as with much of the world– watches this case with bated breath.

The Claim

The corporate defendant, Green Park International Ltd., is a Quebec-registered corporation that has been involved in constructing and developing settlements for Israelis on occupied land in the West Bank. The land in question falls within the territory of the village of Bil’in. The plaintiffs are the Village Council of Bil’in, as well as Ahmed Yassin, now deceased, who claimed to own part of the land in dispute.

The structure of the claim is somewhat intricate. The plaintiffs allege that the corporate defendants are engaged in constructing residential buildings intended for Israeli civilians on village land, in furtherance of an Israeli state policy of inducing its civilian population to settle occupied territory with the ultimate objective of facilitating the eventual assimilation of these lands into its own territory.

The West Bank is not part of Israel but has been under Israeli military occupation since 1967. Thus, it falls squarely within the purview of the Geneva Conventions, which set out much of the international law with respect to military occupation. Under Article 49(6) of the Fourth Geneva Convention, it is illegal for an occupying state to “transfer parts of its own civilian population onto the territory it occupies” (the same prohibition is also set out in Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court). The plaintiffs allege that Israel is in breach of this law, and that the defendants are assisting in this breach.

Under international law, it so happens that a breach of Article 49(6) of the Fourth Geneva Convention is classified as a war crime. The term “war crime” has no clear, universally accepted definition, but essentially war crimes are those violations of the laws of war so grave that they have been specially designated by the international community as an extraordinary class of offence whose reprehensible nature would “shock the conscience of all right-thinking people” (to use the words of Cory J. in R. v. Finta, [1994] 1 S.C.R. 701). Laws against war crimes are generally aimed at atrocities against civilians, prisoners of war, and other non-combatants.

A war crime, to put it succinctly, is a very serious matter. Further, it is easy to see why the offence in question falls into this special category. Article 49(6) is essentially a law to prevent colonialism. One need look no further than the current condition of the indigenous peoples whose domain once spanned the entire expansive breadth of this continent to appreciate the gravity of the consequences territorial dispossession can inflict upon a population. Most war crimes deal with offences against individuals or groups of individuals, but the offence in Article 49(6) is one that threatens the integrity of an entire people. It clearly qualifies as an exceptional offence of higher order that is of grave concern to the global community as a whole.

The plaintiffs’ allegation that the defendants are participating in war crimes is not only very serious but highly politically charged. Thus, although the Geneva Conventions Act, R.S.C. 1985, c. G-3, and the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, confers on Canadian courts criminal jurisdiction over war crimes committed anywhere in the world, a prosecution of the Bil’in defendants would never proceed in Canada. Under the Canadian legislation, it would require the personal consent of the Attorney General or Deputy Attorney General, which, due to such political considerations, would be next to impossible to obtain. However, the plaintiffs have framed participating in war crimes as a civil wrong, invoking the standards of conduct articulated in the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act to argue that the defendants are liable in tort under Article 1457 of the Civil Code of Quebec, R.S.Q., c. C-25, which sets out the basic principle of extra-contractual civil liability under Quebec civil law:

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

In bringing this claim, the plaintiffs have become the first in Canada to institute a civil claim for war crimes since a failed attempt by the family of Shidane Arone to bring a civil claim in Ontario courts for Arone’s torture-death at the hands of Canadian peacekeeping soldiers in Somalia (which was dismissed in an unreported judgment).

The defendants, not to be outmatched in creativity, filed in response a series of motions to dismiss, pleading no cause of action, state immunity, lack of standing, forum non conveniens, and even res judicata.

The Judgment

Cullen J. dismissed most of these motions either in whole or in part. Notably, he also accepted, for the first time in Canada, that the commission of a war crime constitutes a civil wrong:

[175] A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.

He further accepted that a person may also commit a civil wrong by knowingly participating in a war crime:

[176] In theory, a person would therefore commit a civil fault pursuant to art. 1457 C.C.Q. by knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies, in violation of an international instrument which the occupying power has ratified. Such a person would thus be knowingly assisting the occupying power in the violation of the latter’s obligations and would also become a party to a war crime, thereby violating an elementary norm of prudence.

However, the good news for the plaintiffs ends there. Despite delivering the not altogether stunning ruling that the commission of a war crime does, indeed, constitute a civil wrong in Canada, Cullen J. nevertheless exercised his discretion under CCQ Article 3135 to decline jurisdiction on the grounds of forum non conveniens.

In some ways this result is unsurprising. The doctrine of forum non conveniens has long been a staunch ally to Canadian corporations beset by human rights claims launched from abroad. However, the plaintiffs here put up a vigorous legal resistance which was innovative and not without appeal.

One of the relevant factors in the forum non conveniens analysis in Quebec, as in common law Canada, is the law governing the dispute. In Quebec, as in the rest of Canada, the law to be applied in a tort action is the lex loci delicti – the law of the place where the tortious act occurred. However, CCQ Article 3081 provides that “[t]he provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations” (this is roughly analogous to the public policy exception in common law conflict of laws). The plaintiffs argued that the legality of settlements with respect to the Geneva Conventions is not justiciable in Israeli courts. The law as applied by Israeli courts would fail to take account of the Geneva Conventions and, insofar as it would condone the commission of a war crime recognized under both domestic and international law, would be “manifestly inconsistent with public order as understood in international relations.” Accordingly, sending the claim for disposition to Israel would lead to a result that would offend this notion of “public order.”

Furthermore, it is questionable whether Israel can even be considered an available forum, let alone an appropriate one. Insofar as the Israeli courts are effectively unable to hear the action framed as it is in terms of war crimes, it could be said that this claim is not one that is even capable of being tried in Israel. Declining jurisdiction in favour of the Israeli courts would leave the plaintiffs with no viable alternative forum in which to pursue their claim, which would plainly not be in the interests of justice.

Either analysis presents a compelling argument. It would plainly be unjust to send a civil suit for war crimes to the forum whose state is allegedly responsible for those war crimes, particularly where the legality of state action with respect to war crimes is not a justiciable issue. To support their position, the plaintiffs filed the affidavit of Orna Ben-Naftali, a professor of international law whose expertise lies chiefly in the field of international humanitarian law. Prof. Ben-Naftali explained how it is the judicial policy of Israeli courts to decline to review the legality of settlements with respect to international humanitarian law. The defendants, for their part, filed the affidavit of Israeli attorney Renato Jarach, which was substantially in agreement on the fact that Israeli courts would not review the legality of settlements with respect to war crimes, but pointed out that it was not for lack of legal tools to give judgment, but rather because a judicial determination with such broad political aspects should defer to the political process. At trial, counsel for the defendants pleaded respect for the principle of judicial deference to executive action in areas of government policy.

Cullen J. rejected the plaintiff’s argument by rejecting the evidence of Prof. Ben-Naftali – although, as we shall see, not in a way that entirely prefers Mr. Jarach’s evidence either. Embarking on his own interpretations of the Israeli case law, he concluded that it is not for political reasons that Israeli courts refrain from applying international humanitarian law to disputes respecting individual rights, but because the 1949 Geneva Conventions do not form part of domestic statute law in Israel. Furthermore, when the Israeli High Court of Justice was ruling on this question in the 1970s, it did not consider the 1949 Geneva Conventions to be rules of customary international law (which are automatically incorporated into the domestic law of all developed nations). In other words, Israeli courts do not apply the Geneva Conventions simply because they are not incorporated into Israeli law. Noting that “[a] similar requirement exists in Canada, where international instruments require legislative action to form part of Canadian domestic law,” he concluded that this requirement was not “manifestly inconsistent with public order as understood in international relations” within the meaning of CCQ Article 3081. Accordingly, the juridical advantage that the plaintiffs sought is not the advantage of being able to plead the Geneva Conventions, but rather the merely procedural advantage of not having to argue to an Israeli court that the Geneva Conventions have, since the 1970s, become part of customary international law (and therefore part of Israeli law). This minor juridical advantage, he found, is not enough to justify asserting jurisdiction, in light of the other connecting factors which, he concluded, pointed to Israel as the more appropriate forum.

Analysis

With respect, I am unable to agree with the reasoning of Cullen J. For the present purpose, I assert no position as to the legality of Israeli settlements under international law, or the commission of war crimes by Israel, or the state of Israeli law. However, I do agree with the basic reasoning that war crimes, by virtue of their nature, are a special category of higher-order wrongful conduct that would “shock the conscience of all right-thinking people,” and are consequently of deep concern to the global community as a whole. Given the grave and universally condemned nature of the acts alleged—acts which undoubtedly offend “public order as understood in international relations”—I feel that Cullen J.’s reasoning fails to disclose an adequate basis for declining jurisdiction—jurisdiction which the Quebec court, by virtue of the defendants’ domicile, is legally entitled to assert. I call attention, on this point, to the SCC’s citation in Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78 of the principle of forum non conveniens that in Quebec, “the plaintiff’s choice of forum should only be declined exceptionally, when the defendant would be exposed to great injustice as a result.”

I have some reservations, first of all, with the manner in which Cullen J. arrives at his determinations on Israeli law. The content of foreign law is not a question of law but a question of fact, which must be proven by expert evidence. A judge cannot simply disregard the pleadings of the parties and interpret the foreign law as he or she sees fit, as would be the case with domestic law (for example, SCC jurisprudence). Yet there is a strong argument to be made that this is exactly what Cullen J. did. The defence expert, Mr. Jarach, did not argue the point that Cullen J. ultimately relied on—namely, that the Geneva Conventions are non-justiciable merely because they are not considered customary international law. By embarking on his own analysis of Israeli case law and substituting his own legal interpretations of the judgments, and thereby arriving at factual conclusions that were not advanced in the testimony of any of the relevant experts, Cullen J. seems to skirt dangerously close to the limits of his judicial authority.

That said, I profess to having no expertise as to the proper interpretation of Israeli law and would not presume to challenge such a conclusion. Assuming, therefore, that Cullen J. properly came to the correct factual determination, and that the Geneva Conventions are indeed non-justiciable in Israel merely because they are not considered customary international law, I still fail to perceive the deductive progression between such a factual determination and the legal conclusions reached by Cullen J.

The plaintiffs’ argument, as I understand it, is that the failure of Israeli courts to apply the Geneva Conventions would in and of itself lead to a result “manifestly inconsistent with public order as understood in international relations,” insofar as it would condone the commission of a war crime. The reason behind the failure to apply such law—be it legal or political—is irrelevant. Rather, the relevant question is whether war crimes—prohibited as they are under international humanitarian and international criminal law and as indictable criminal offences under our own domestic penal law—are themselves acts that are “manifestly inconsistent with public order as understood in international relations.” If the answer is in the affirmative, then sending the claim to an Israeli court would lead to the application of a law that is “manifestly inconsistent with public order as understood in international relations,” regardless of the reasoning behind this law.

For this reason, I believe Cullen J. misses the point entirely by characterizing the question of whether the Fourth Geneva Convention is customary international law as “central to the dispute.” Although I happen to believe there is a very strong case to be made that, notwithstanding the Israel High Court of Justice’s opinion, the relevant norms of the Fourth Geneva Convention are indeed part of customary international law, I am of the opinion that this question is not central, but is, at best, peripherally relevant to the dispute.

I am further unconvinced by Cullen J.’s argument that, since 30 years have passed since the Israeli High Court of Justice pronounced in 1979 that the 1949 Geneva Conventions had not yet become part of customary international law, it is now open for the plaintiffs to argue before an Israeli court that since that time, the Geneva Conventions have indeed crystallized into customary international law. It seems only logical that a domestic plaintiff pleading that the application of a foreign law would lead to an unjust result ought to be entitled to presume that the foreign court will apply the law as it currently stands. It seems unreasonable to require the plaintiff to ask the foreign court to change the law on the strength of abstract speculation, wholly unsupported by evidence, that the foreign court may be receptive to such a change now that the current state of the law is 30 years old.

International Humanitarian Law

There is a further passage in the judgment where Cullen J. issues some remarks on the topic of international humanitarian law that raise interesting questions. After qualifying Prof. Ben-Naftali as an expert in “International Humanitarian Law,” Cullen J. offers the following commentary on her area of expertise:

[248] Professor Ben-Naftali refers to “International Humanitarian Law”. According to Sir Ian Bownlie [sic] the similar expression of “International Human Rights Law” is a convenient but perhaps confusing category of reference devoid of intrinsic substance:

Many lawyers in academic life refer to an entity described as “International Human Rights Law” which is assumed to be a separate body of norms. While this is a convenient category of reference, it is also a source of confusion. Human rights problems occur in specific legal contexts. The issues may arise in domestic law, or within the framework of a standard-setting convention, or within general international law. There is thus the law of a particular State, or the principles of the European Convention on Human Rights, or the relevant principles of general international law. In the real world of practice and procedure, there is no such entity as “International Human Rights Law”.

There is a key difference, however, between “international human rights law” and Prof. Ben-Naftali’s actual words, “international humanitarian law.” International humanitarian law is, of course, the field of law governing the rules of armed conflict between nations. Otherwise known as the laws of war or the law of armed conflict, it is the specific field of law that governs, inter alia, the commission of war crimes. The term “international human rights law” may very well be a “confusing category of reference devoid of intrinsic substance” (more on this contentious point below). International humanitarian law, however, is undoubtedly a well-defined and highly specialized field of law, and moreover the precise field of law that is implicated in this dispute.

It is puzzling why Cullen J. would conflate two decidedly distinct entities in such a manner. With the greatest respect to Cullen J., who for the most part delivered a thoughtful and well-reasoned opinion on a highly complex matter, the most likely reason seems to be that the judge, a specialist in civil and commercial litigation, simply failed to apprehend the distinction between international humanitarian law and international human rights law.

A careful examination of the rest of the decision seems to bear this explanation out. Other public international law concepts discussed in the judgment, such as customary international law, are duly defined and explained, but mysteriously there is no explanation of international humanitarian law anywhere in the judgment, outside of the confusing comparison with international human rights law. In fact, the term first appears placed inside quotation marks, as if the judge questions its universality or value. Nowhere is there any evidence to positively establish an affirmative awareness of the specialized meaning of the term.

Upon consideration, it is not inconceivable how a civil and commercial litigation specialist could develop such an impression. The precise meaning of the term “international humanitarian law” is not evident on the face of the words themselves, and the name does bear a potentially confusing similarity to the term “international human rights law.”

On its face, then, erroneously equating international humanitarian law with international human rights law appears to be merely a minor flaw in the judgment that does not affect the integrity of the decision as a whole. While it must no doubt be of no small consternation to the plaintiffs for the judge to be unaware of the name of the very field of law centrally implicated in this dispute, the judge in ruling on this motion made very little in the way of legal determinations concretely engaging international humanitarian law.

On closer consideration, however, this seemingly benign mistake does raise concerns that are serious enough to compromise the broader integrity of the decision. It raises an apprehension that every time the phrase arose in oral argument, in written submissions, or in relevant treatises that were consulted during the course of deliberations, there is a chance that the precise message may have been lost on the judge.

More significant, however, are this error’s implications on the judge’s assessment of the credibility of Prof. Ben-Naftali. An examination of the context of the passage quoted above makes it clear that Cullen J.’s purpose is to weaken Prof. Ben-Naftali’s credibility as a reliable expert and the weight of her evidence by erroneously finding that her testimony is plagued with terms that are “confusing” and “devoid of intrinsic substance.”

Further, as mentioned above, Cullen J. explicitly qualified Prof. Ben-Naftali as an expert in international humanitarian law. Accordingly, he deemed her to be an expert in a “confusing category of reference devoid of intrinsic substance,” of which “there is no such entity”—essentially, not much of a real expert in anything at all. Under this mistaken impression, he would then have assigned to her evidence a corresponding degree of weight.

It is unclear what conclusion Cullen J. may have reached with respect to the expert evidence before him had he been properly cognizant of the fact that, actually, Prof. Ben-Naftali was an expert in precisely the highly specialized and concretely defined field of international law that is squarely implicated in the dispute. Had he not mischaracterized her expertise, he may not have been so quick to substitute his own interpretation of Israeli law for hers. Whatever the case, it is clear that Cullen J.’s accidental conflation of international humanitarian law and international human rights law may have given rise to broader misconceptions that could have affected the final outcome.

International Law in Domestic Courts

The passage quoted above is not the only place where Cullen J.’s relative inexperience with respect to public international law is exposed. Later in the judgment, Cullen J. makes reference to “Israel’s absolute immunity to any judicial proceedings [in Canada]” [Emphasis added].

The term “absolute immunity” ordinarily refers to the conception of state immunity that confers on a state complete and total immunity, with no exception, from the jurisdiction of the domestic courts of another state. The doctrine of absolute immunity has been essentially defunct, at least in Canada, since at least 1982 when the federal government enacted the State Immunity Act, R.S.C. 1985, c. S-18, which codified the developing common law theory of restrictive immunity. In contrast to absolute immunity, the latter theory allows a number of exceptions to state immunity; for example, exceptions relating to commercial or criminal activity.

It is thus incorrect, and has been for some time now, to speak of Israel or any foreign state as enjoying “absolute immunity” in Canada. One expects that a judge with a stronger background in public international law would have avoided such wording, conflicting as it does with an established term of art—although given the many exceptions contained in the State Immunity Act, it is difficult to see how it could be said that Israel enjoys “absolute immunity” in either the doctrinal or the literal sense.

Further, Cullen J.’s dismissal of the term “international human rights law,” and his assumption that a sub-field of international law characterized by common subject-matter is “devoid of intrinsic substance” simply because it admits of many different sources, fundamentally misapprehends what is almost by necessary implication an intrinsic characteristic of many fields of international law. On this reasoning, there cannot be any sub-field of international law, whether “international human rights law,” “international environmental law,” “private international law,” “international trade law,” and so on.

If I were an international lawyer, I might point to these mistakes as a reflection of the generally ambivalent attitude towards public international law within the Canadian legal profession. To be sure, Canadian courts have also come out with some expertly written decisions on both state immunity and international humanitarian law. However, there are also many decisions such as Cullen J.’s where it is apparent that the judge is grappling with new and unfamiliar issues, often with unfortunate results. These kinds of issues will only arise more frequently in the future, as increasing international economic integration continues to produce more transnational litigation.

Conclusion

The plaintiffs have not yet filed an appeal, although one is expected. If Bil’in does find its way before the Court of Appeal, however, the plaintiffs certainly have a strong case to have the trial judge’s decision overturned. For the reasons outlined above, I am not convinced that Cullen J. properly identified and assessed the relevant considerations in his forum non conveniens analysis. He failed to properly assess the plaintiffs’ argument with respect to the non-justiciability of the legality of settlements under international humanitarian law in Israeli courts, and anchored his finding in an irrelevant consideration, i.e. the question of whether the reasoning behind this policy is legal or political. Further, he seriously mischaracterized Prof. Ben-Naftali’s expert evidence and qualifications and called her credibility into question on a faulty basis.

Ultimately, however, perhaps my strongest objection to this decision is what can only be characterized as its fundamental failure to give due consideration to the gravity of that special class of human rights abuses known as war crimes. Sending a civil claim for war crimes, over which the domestic courts lawfully have jurisdiction, to the courts of the same country alleged to have committed them is a proposition that ought to be suspect on its face, and to which domestic courts ought to accede only with extreme caution. Under no circumstances, in particular, should such jurisdiction be declined where, as the trial judge admitted here, war crimes are not justiciable in the courts of that country. This would lead to the grossly unjust result of leaving the plaintiff absolutely no forum in which to pursue the claim. Cullen J.’s claim that the refusal to adjudicate the commission of war crimes due not to their politically sensitive nature but because they are not customary international law essentially reduces international prohibitions against war crimes to the same status as any common treaty between nations: of no legal force in domestic courts until it is incorporated into domestic law by legislative enactment. It is a finding inconsistent with an awareness that war crimes are grave offences, not simply by virtue of their status as international law, but because they are in and of themselves serious and universally condemned violations of human rights, elevated to such exceptional status by broad international consensus—a consensus endorsed in Canada through such legislative enactments as the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act.

Cullen J. does not so much as acknowledge the difficulty this fact poses for his ultimate finding in his discussion of the “interests of justice” factor in forum non conveniens. Instead, he demurs to such factors as the plaintiffs’ failure to join any current owners or occupiers of the settlements (as if the issue concerned a mundane property dispute and not a war crime) and, incredibly enough, the need to conserve judicial resources. The non-justiciability of war crimes in Israel, meanwhile, is dismissed as akin to any mere difference between the laws of Israel and the laws of Quebec. Throughout the discussion, he seems blithely unaware of any reason why one might consider the non-justiciability of war crimes normatively problematic beyond the mere fact of simple divergence with the law of Quebec. Even on its most generous interpretation, such reasoning demonstrates nothing short of a complete failure to apprehend the exceptional character of the matters at stake in this litigation.

Such a ruling ought to trouble any observer, regardless of where on the spectrum he or she may fall with respect to the broader political context of this dispute. The issue at stake here is whether a civil claim for war crimes against a Canadian corporation can be heard in Canada, and not (at this stage) whether such war crimes were actually committed. The narrow and restrictive approach that Cullen J. took to the plaintiff’s arguments on justiciability and the failure to give effect to the exceptional level of censure that the international community has chosen to attach to war crimes could set a dangerous precedent that any observer measurably disturbed by the commission of war crimes in any form would be quick to condemn.

As authorities such as Binnie J. have noted, “[t]he enforcement mechanisms for human rights have lagged… [Y]ou cannot have a functioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress.” In order to facilitate the introduction of such enforcement mechanisms, Canadian courts must act to significantly curb their current proclivity towards the liberal application of the forum non conveniens doctrine in such cases. Especially since the 1999 forum non conveniens stay in the Cambior case in Quebec (alongside a costs order against a Quebec NGO bringing a claim on behalf of Guyanese citizens that alleged health and other harms from a cyanide spill by a subsidiary of a Canadian gold mining company), Canadian courts have attracted—and often affirmed—a reputation as weak and ineffective when it comes to transnational corporate accountability. For example, when Sudanese citizens sought to sue Canadian company Talisman Energy, they went to US courts, arguing that the receptivity of Canadian courts to allowing a claim against a Canadian company was at best unclear, notwithstanding the fact that it was palpably clear Sudanese courts offered no viable alternative.

As it stands, the Bil’in judgment is a setback in the fight against war crimes, crimes against humanity, and human rights violations everywhere. If the reasoning stands, Canadian corporations will continue to successfully take shelter behind forum non conveniens regardless of the gravity of the allegations against them or the capacity of the foreign court to adjudicate the claim.

The author attended the hearing of Bil’in (Village Council) v. Green Park International Ltd. in Montreal in June with the assistance of the Nathanson Centre on Transnational Human Rights, Crime and Security. He has also provided legal research support and feedback to counsel for the plaintiffs.

A striking difference between the CRA and the Supreme Court Act, R.S.C. 1985, c. S-26, is how vacancies on the Supreme Courts are filled. The preliminary qualifications are roughly comparable: in Canada, prospective appointees must be (or have been) superior court judges or lawyers of at least 10 years call, while in the UK persons must have held judicial office for at least 2 years or have been a qualifying practitioner for at least 15 years. All Canadian justices are appointed by the Governor in Counsel; similarly, in the UK the Prime Minister recommends candidates which Her Majesty appoints through letters patent. As Canadian readers are likely well aware, all remaining issues involving the selection process and substantive qualifications of prospective judges are matters of political discretion, and accordingly subject to whim of the government of the day. Not so in the UK: the Prime Minister must recommend any person whose name is put forward by the Lord Chancellor and may not recommend any other person. The Lord Chancellor, in turn, is bound to put forward the name recommended by a selection commission. The Lord Chancellor retains only the discretion to send a selection back for reconsideration by the committee, if he or she believes there is insufficient evidence that the person is suitable for the position or if there is evidence the person is not the best candidate on merit.

For Supreme Court vacancies, the selection commission consists of the President and Deputy President of the Court, and one member from each of the three regional judicial selection committees. Similar to Canada, the UK Act displays a concern for regionalism: should the President and/or Deputy President be absent, then the commission shall ensure one each of the most senior judges representing England and Wales, Scotland, and Northern Ireland shall sit on the committee. While the Lord Chancellor technically appoints which three members of the judicial selection committees shall sit on the Supreme Court selection commission, the Lord Chancellor is bound only to appoint persons recommended by the respective committees the members are drawn from. Interestingly, the statute proscribes that at least one member must be non-legally qualified –i.e. have never held judicial office disqualifying him or her from running for Parliament, and have never been a practicing lawyer.

The commission sets its own selection process, bound only to consult the Lord Chancellor and the chief regional politicians, along with the most senior judge of the courts of a region if a member of the judiciary from that region is not on the commission. It seems trite, but the CRAsets out that commission members are ineligible to be selected themselves. The commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account in making a selection; the statutory criteria to consider are that the selection “must be on merit” must “ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.”

In many respects, this process is not necessarily any more transparent or accountable than leaving selection in the hands of the executive. This is not a bad thing. A potential jurist’s background, innate biases, and personal value preferences should not be relevant to the appropriateness of their appointment provided that candidate can take up the mantle of neutrality the post requires. Some may argue the public and Parliament should have a right to examine a candidate for high judicial office’s philosophical and legal background before the appointment is confirmed. I submit, however, that exercises of partisan questions and guarded answers reveals little about distinguished candidates that their record (particularly should the candidate already be a justice) does not. All such proceedings do is offer the potential for a dog-and-pony show by politicians looking to score political points by proving the executive is appointing someone who is either ideologically unpalatable or an universal paragon of neutrality, wisdom, and common-sense (depending on which side of the floor said politicians happen to be inhabiting).

As mentioned previously, it would be difficult to take issue with the most recent jurist to join the Supreme Court of Canada, Mr. Justice Cromwell. The differences between his appointment and the process used to vet the previous Court appointee (Mr. Justice Rothstein), however, illustrate the potential vagrancies of the current Canadian appointments process. The CRA removes such partisan politics from the appointments process, and hands the tough job of selecting new top jurists to a panel of neutral legal professionals (and one distinguished outsider). In particular, including sitting members of the Supreme Court in the appointments process enables the commission to consider gifted jurists, lawyers, and academics who possess particular experience in fields the Supreme Court wishes to supplement regardless of that candidate’s political acceptability. The UK has chosen to place the focus of the appointments inquiry into what qualities would best serve the bench as opposed to those that will pass Parliamentary muster. Assessing “merit” is not a straightforward task; to pervert an oft-quoted saying by a member of another Supreme Court, it is perhaps most recognizable when it is generally accepted.  Another parallel can be drawn: when assessing notoriously unquantifiable qualities, it is better to rely on clear, neutral processes than partisan assessments, gut instinct, and personal preference.  The UK legislation seeks to do just that; Canadian law makers would do well to take note.