Supreme Court of Canada: Dell Computer Corporation v. Union des Consommateurs (13 July 2007)
Click here for document. (Majority approximately 70 pages, dissent approximately 50 pages).
The Supreme Court of Canada held that an arbitration clause contained in a hyperlink to an Internet order form was enforceable. It thus ordered that Dell Computer Corporation’s (Dell) appeal should be allowed, the claim should be referred to arbitration, and the class action motion should be dismissed.
On April 4, 2003 Dell erroneously posted prices on the order page of its website for handheld computer equipment at $89 and $118, rather than the correct amounts of $379 and $549. The next day Dell blocked access to the incorrect order pages, posted the correct prices on its website, and stated that it would not honor the previously posted ones. Mr. Dumoulin bypassed Dell’s blocking mechanism and attempted to order the handheld computers at the lower prices. When Dell refused to honor his order, Dumoulin and the Union des Consommateurs moved for approval to file a class action lawsuit against Dell. Dell moved to refer the dispute to arbitration through an arbitration clause in the terms and conditions of sale, and to dismiss his motion for a class action. Both the Superior Court and Court of Appeals held that Dell could not enforce the arbitration clause. Dell appealed. A Quebec law, “Bill 48”, prohibiting requiring a consumer to refer a contractual dispute to arbitration, took effect December 12, 2006, the day after the Supreme Court of Canada heard the case.
The plaintiffs argued that the arbitration provision was an “external clause” to the contract for sale contained in a hyperlink to the order page and void pursuant to article 1435 of the Code of Civil Procedure. Writing for the majority, Justice Deschamps opined that the issue of whether a contract clause accessible via a hyperlink on the Internet may be considered an “external clause” was an issue of first impression. Buyers could access the arbitration clause by clicking on the link “terms and conditions of sale” that appeared on each order page. Because the clause was readily available to consumers, the court held that the arbitration clause was not an external one and was therefore valid.
The plaintiffs also argued that because the case involved a class action it was a matter of “public order,” and arbitration should not be permitted. The court rejected this argument however, noting that in Bisaillon v. Concordia University [2006] 1 S.C.R. 666 SCC 19; it held that class actions cannot provide a foundation for a lawsuit if an individual claim would not offer one.
The court next turned to the possible applicability of Bill 48 to the case. Bill 48 prohibited contracts from forcing consumers to rely upon arbitration rather than courts in disputes. Because Bill 48 did not take effect until December 14, 2006, the court examined whether it had retroactive applicability to the case. Emphasizing that the events leading to the lawsuit occurred before the new law took effect, and that nothing in the law indicated that it was meant to have retroactive application, the court held that there was “no reason to give it such a scope” (p. 69).
United Parcel Service of America Inc (UPS) v. Government of Canada, Award on the Merits (24 May 2007)
Click here for additional information. (Approximately 150 pages)
Arbitral Tribunal composed of: L. Yves Fortier (arbitrator), Judge Kenneth Keith (President), Dean Ronald A. Cass (arbitrator, dissenting).
A split arbitral tribunalissued its award on the merits in a dispute between the United Parcel Service of America, Inc. (UPS Claimant) and the Government of Canada (Respondent) on 24 May 2007. In the first time that an arbitral tribunal has interpreted the cultural industries clause of the North American Free Trade Agreement (NAFTA), the tribunal rejected claims by UPS of approximately US $160 million in damages.
UPS, an American courier and package delivery service provider, initiated a claim against the government of Canada in January 2000 pursuant to the investor-state dispute settlement procedures of NAFTA Chapter Eleven. It alleged that Canada Post Corporation (Canada Post), a government-authorized postal monopoly in Canada, engaged in anti-competitive conduct in violation of NAFTA Chapter Eleven Articles 1102 (National Treatment), 1103 (Most-Favored-Nation Treatment), 1104 (Standard of Treatment), 1105 (Minimum Standard of Treatment), and Chapter Fifteen Articles 1502(3)(a) and 1503(2) (Monopolies and State Enterprises).
Specifically, in regard to its National Treatment (NT) claims, UPS argued that since it competed in the same economic sector as Canada Post, Canada discriminated against it because of its non-Canadian status when: (i) Canadian Customs exempted Canada Post from customs collections, taxes, and other fees imposed on UPS; (ii) Canada Post’s pricing policies afforded an unfair advantage to Canada Post’s products over those of UPS; (iii) Canada Post used its postal monopoly infrastructure to reduce delivery costs in its non-monopoly services; and (iv) Canada’s Publications Assistance Program (PAP) required publishers to deliver their publications through Canada Post to obtain the government subsidy.
Canada replied that UPS’s courier products and Canada Post’s mail products were not “in like circumstances,” the key test for a NT violation, and thus, could be treated differently. It further noted that even if they were “like” products, tribunals should not second-guess government’s public policy objectives making two entities unlike. Canada then raised a number of affirmative defenses, i.e., that the PAP and related measures were excepted from NAFTA because they were designed to assist cultural industries, were part of government procurement or even subsidies.
The tribunal first held that UPS could only bring its NAFTA Chapter Fifteen claims based on anti-competitive measures if they also breached the substantive provisions (Section A) of NAFTA Chapter Eleven.
Notably, the tribunal members diverged as to UPS’s National Treatment claims. While Arbitrators L. Yves Fortier and Justice Kenneth Keith held that Canada had not breached the NT obligation, Arbitrator Ronald Cass dissented because in his view, Canada had violated that provision. In regard to the “like circumstances” test, the majority sided with Canada and held that Canada Post and private couriers like UPS were “unlike” because they were treated as separate by international postal conventions. Therefore, UPS could be treated differently without breaching NAFTA Article 1102. By contrast, arbitrator Cass concluded that UPS and Canada Post were “like service providers” and customers used their products interchangeably. In his view, by establishing this competitive relationship with Canada Post, UPS had made a prima facie case of “like circumstances” and the burden had shifted to Canada, who had failed to explain why the two competing enterprises were not “in like circumstances.
Furthermore, in regard to Canada’s Publications Assistance Program (PAP), the majority upheld Canada’s argument that the PAP was exempted from scrutiny by virtue of NAFTA Annex 2106 (i.e. the “cultural industries” clause). By contrast, the minority held that the PAP was not a carve-out because Canada Post was “not part of a cultural industry any more than a local firm running delivery trucks.” Thus, under this view, NAFTA does not immunize Canada’s postal and mail service merely by asserting a connection to a cultural goal.
Finally, in passing, the arbitral tribunal also rejected allegations that Canada was in breach of NAFTA Article 1103, 1104 and 1105.
--Marco Tulio Montanes
United States: United States v. Padilla (S. D. Fla. August 16, 2007)
A unanimous federal jury in the United States District Court for the Southern District of Florida convicted U.S. citizen Jose Padilla and his two co-defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, of two counts of conspiracy on August 16, 2007. The jury convicted the men of conspiring to murder, kidnap and maim persons in a foreign country as well as conspiring to provide material support for terrorists.
A Grand Jury charged the three men November 17, 2005 with operating a North American support cell that provided money, physical assets, and mujahadeen recruits to overseas conflicts to wage jihad or holy war in Kosovo, Chechnya, Somalia, and Bosnia. Sentencing in the case is scheduled for December 5, 2007.
Federal officials originally suspected Padilla of attempting to detonate a “dirty bomb” in the United States in 2002. President Bush issued a statement declaring Padilla to be an “enemy combatant” closely associated with al Qaeda on June 9, 2002. He cited the Authorization to Use Military Force Resolution (P.L. 107-40) as the legal basis to permit Padilla’s detention.
Padilla’s attorneys allege that he was held for over three years in solitary confinement in a Navy Brig in South Carolina without being charged.
President Bush subsequently issued a memorandum November 20, 2005, authorizing Padilla to be transferred from the custody of the Department of Defense to the United States Attorney. On January 4, 2006, the United States Supreme Court granted the Solicitor General’s application to transfer Padilla from military to civilian custody to stand trial for the Florida charges.
High Court of Australia: Thomas v. Mowbray (2 August 2007)
Click here for document. (Majorityapproximately 35 pages. Dissent approximately 70 pages).
In a 5 to 2 decision, the High Court of Australia upheld the Constitutionality of a criminal anti-terrorism law under which a Federal Magistrate issued an interim control order (ICO) against Joseph Terrence Thomas, an al Qa’ida trainee.
Thomas participated in paramilitary training at an Al Qa’ida training camp in Afghanistan in 2001. Officials arrested him in Pakistan in 2003, and charged him with terrorism and passport offenses in 2004. The Australian Victorian Supreme Court subsequently convicted him of intentionally receiving funds from a terrorist group and owning a false passport. The Victorian Court of Appeals set aside the conviction in August 2006 and ordered a retrial. Before the retrial could be heard, the Australian Federal Police with the consent of the Attorney General, filed for an ICO under Division 104 of the Criminal Code Act. Graham Mowbray, an Australian Federal Magistrate, issued the ICO against Thomas August 27, 2006 to protect the public and “substantially assist in preventing a terrorist act.” The order placed a number of restrictions on Thomas including prohibiting him from manufacturing explosives; leaving Australia without notifying officials; or communicating with prohibited parties. Thomas moved to quash the ICO alleging that Division 104 of the Criminal Code under which it was authorized was unconstitutional on three grounds: 1) it gave non-judicial power to a federal court; 2) it was incongruous with Chapter III of the Constitution; and 3) neither express nor implied legislative power supported it.
In the court’s decision to uphold the constitutionality of the law it noted that the judiciary exercises powers similar to those in Division 104 to restrict an individual’s liberty through for example, bail and “apprehended violence” (protective) orders. Thus, such power is not within the exclusive realm of the legislature. Moreover, the court held that the defense power of Australia provides legislative support for Division 104 and this power includes protecting the public from terrorism.
The dissent opined that Division 104 is unconstitutional because it lacks an “established source” in federal constitutional power and impugns the Chapter III mandates of the Australian Constitution regarding the power of the judiciary. The dissent was unconvinced that the defense power of the Australian Constitution provided a sufficient basis for Division 104; and stated that this expansive interpretation of the defense power should be rejected. The dissent also emphasized that it was troubled by the “one-sided” nature of the information presented to Federal Magistrate Mowbray at the ICO proceeding against Thomas.
RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
United Nations Security Council Resolution 1740 (23 January 2007) Nepal
Report of the Secretary-General on the request of Nepal for United Nations Assistance in support of its Peace Process (18 July 2007)
Click here for document. (Approximately 14 pages).
The government of Nepal and the Communist Party of Nepal (Maoist) signed a comprehensive peace agreement on November 21, 2006. They subsequently requested the United Nations (UN) to assist them to implement key provisions of the peace agreement, notably those regarding monitoring elections and possession of arms.
A monarchy has ruled Nepal for most of its existence. General political reform of the government in 1990 led to a multi-party democracy within a constitutional monarchy. Nevertheless, because of the plight of the poor in Nepal and political infighting among the political parties, the Maoists took up arms against the government. In 2005, there were an estimated 10,000 to 15,000 Maoist rebels in Nepal, with large parts of the country in their control. For most of the past decade Nepal has experienced political instability and violence.
In resolution 1740, the United Nations (UN) Security Council created a political mission in Nepal (UNMIN) for an initial twelve month mandate. The Security Council tasked UNMIN with monitoring arms and armed personnel of the parties pursuant to the terms of the peace agreement. UNMIN will also provide technical assistance to the parties to hold free and fair elections of a Constituent Assembly; and supply electoral observers and report on the election process.
UN Secretary-General Ban Ki Moon reported to the Security Council in July 2007 on the status of UNMIN’s work. While UNMIN helped Nepal to reach important achievements, including the development of an interim constitution, parliament, and government composed of both Maoists and ministers, significant challenges remain. The Election Commission postponed the elections for the Constituent Assembly that were originally scheduled to be held in June 2007 principally because of an inability of the eight-party alliance to agree to the electoral framework. The Election Commission emphasized that security measures for the election and steps to ensure sufficient representation of historically underrepresented groups need to be put in place. There has also been intermittent violence among minority groups in various parts of Nepal.
The Secretary-General emphasized that UN procurement, personnel, and delegation of authority rules “do not lend themselves easily to the rapid start-up of a mission of short duration such as UNMIN.” UNMIN has therefore hired a “best practices” officer to examine how the UN might learn from the UNMIN start-up experience. As of July 9, 2007, only 507 of the anticipated 1,073 staff were at their posts. Women comprise only 12 of the 150 arms monitor posts, despite the UN having appealed to member states to nominate women for this role.
The human rights situation in Nepal continues to be of concern mainly because of a lack of sufficient public security and law enforcement. A bill pending in the interim parliament to criminalize forced disappearances could help to improve the current situation of impunity. Non-governmental organizations, victims, and their relatives experience ongoing barriers in getting police to investigate human rights abuses.
United Nations: Report of the Secretary-General on Children and Armed Conflict in Chad (3 July 2007)
Click here for document. (Approximately 15 pages).
United Nations (UN) Secretary-General Ban Ki Moon presented the first country report on the condition of children and armed conflict in Chad to the Security Council July 3, 2007 pursuant to Security Council resolution 1612. The report covers January 1, 2006 to May 30, 2007.
President Idriss Deby has led Chad since the overthrow of the previous regime in 1990. During Deby’s reign, the Zaghawa ethnic group, representing only 3 percent of the population of Chad, has controlled the government. This has increased ethnic tensions in the country. Despite peace agreements signed in 2002 and 2003, political stability has been elusive. The eastern part of Chad has been particularly unstable. Since 2003, refugees fleeing the violence in the Darfur region of Sudan have crossed the border into Chad, creating a humanitarian crisis. Government forces and opposition groups have fought over the control of oil revenues; and Arab and non-Arab villages vie for control of water and grazing lands.
Chad has a population of approximately 9 million people, with 5 million under 18 years of age. Of the 250,000 refugees from Sudan, 138,000 are estimated to be children. Armed rebel groups and militias regularly recruit children to be soldiers, particularly in eastern Chad. While Chad ratified the Optional Protocol to the Convention on the Rights of the Child in May 2002, and passed national law No. 01/PCE/CEDNACVG/91, in 1991, both of which limit recruitment of soldiers to those over age 18 years of age, UN agencies report seeing child soldiers in the Chadian National Army.
Because rape and other sexual violence remain taboo subjects in Chad, it is difficult to obtain accurate statistics on the incidence of such crimes against children. Local communities often handle the matter with financial compensation to the family of the victim and the report cites no documentation of prosecutions of perpetrators of sexual crimes. Nonetheless, from January to March 2007 there were 139 reports of sexual crimes in the refugee camps including the rape of a three year old girl in Gaga refugee camp and the gang rape of a girl in N’Djamena.
Numerous abductions of children have been reported, either for recruitment to become child soldiers or for forced marriages. In March 2006, 150 children were reported abducted in Guereda, with 30 of those children later found dead. Over 80 children were abducted in Mayo-Kebbi in southern Chad between June and December 2006.
The Secretary-General expresses his deep concern over the recruitment of child soldiers in violation of international law, and calls upon all forces to stop the practice and release those children currently serving as soldiers. He supports the Protocol on Protecting Children Victims of Armed Conflict that the Government of Chad and UNICEF signed recently. He encourages Chad to work with the UN to prepare a plan to prevent the recruitment of child soldiers and put transparent policies in place to confirm the release of children currently serving in Chadian armed forces. He urges Chad to work with the international community to better protect civilians in refugee camps and in internally displaced persons sites and to remedy the “culture of impunity” regarding the rights of children. He appeals to the government of Chad to conduct robust investigations and prosecutions of individuals who have committed crimes against children such as rape, sexual violence, killing, and kidnapping. He advises the governments of Chad and Sudan to create lasting peace in the region starting with the Tripoli, Humanitarian Ceasefire, and Riyadh Agreements.
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org
