RSS FeedPrivy Council In Bank Ruling Wraps Jamaican Judiciary On the Knuckles, Part I
First posted on Commercial Law International on May 12, 2009.
The House of Lords, with its Judicial Committee of the Privy Council hat on, as Jamaica’s court of final appeal, handed down a judgment that is set to have repercussions well beyond the interests of the parties involved. In fact the consequences of this judgment go beyond just banking or investing but engages commercial dispute resolution, specifically commercial litigation.
The injunction is a very important – that should read indispensable – tool in the commercial lawyer’s arsenal. It is a power that is highly discretionary and exercised with sensitivity to the peculiarities of the case which by the way includes the idiosyncrasies judge. It is a power jealously guarded by the judiciary and as a matter of judicial comity and judicial politics the power to exercise this discretion is largely left unquestioned, with limited exception, to a judge at first instance. Therefore, whenever a court, much less the highest one in the land, is critical of the way in which this discretion is or has been exercised by other courts all involved in the legal process have right to take pause.
However before I get into what I believe to be the more important aspect of the ruling I should deal with the ratio of the case – for the non lawyers/ non Latin speakers the ratio or ratio decidendi are the reasons or rational for a decision. It will provide not only context for the more important dissuasion on injunctions but will also bring to the fore the importance of this ruling to the banking sector n Jamaica.
National Commercial Bank Jamaica Limited vs. Olint Corporation Limited, is a case that exemplifies why commercial awareness is global.
The question that their Lordships had to focus their minds on was whether a bank, by giving reasonable notice, could lawfully close an account that was not n debit, where there was no evidence of the account being used for unlawful purposes? In the judgment delivered by Lord Hoffmann, ¨their Lordships have no doubt that in the absence of express contrary agreement or statutory impediment, a contract by a bank to provide banking services to a customer is terminable upon reasonable notice.¨
The facts of the case, in brief are: Olint provided administrative and other services to an investment club. The club allegedly derived its profits from foreign exchange trading which was proffered as an explanation for its high rate of returns to its member. It opened two accounts with National Commercial Bank (NCB) in 2005 and a third in 2007. Near the end of 2006 Olint, along with other investment clubs, began to attract very unfavorable coverage in the press . They faced allegations that they were operating a Ponzi scheme where returns to older investors were being paid out of money from newer investors.
It is interesting to note that Olint and other investment clubs sprouted up as a specific market response to the lack of investment alternatives, especially for the lower and middle strata of Jamaican society. In this respect they were in direct competition with the financial establishment - the commercial banks and other financial institutions.
In August of 2007 NCB as per its anti-money laundering and terrorist financing legal obligations – but no doubt also motivated by its concerns over the fraud allegations – asked to see the audited accounts of Olint. None was forthcoming. NCB being apprehensive that the allegations could turn out to be true, opening it up for reputational damage and or claims for negligent or dishonest assistance, decided to end is relationship with Olint. It wrote to Olint in November informing them of the decision to close their accounts on December 17 – a notice period of 32 days.
This action by NCB only added to the atmosphere at the time that NCB and the financial establishment were using at best the strictures of the law or at worst under handed tactics in order to remove the competition that Olint and the other investment clubs offered. To put it in the Jamaican vernacular: dem a fight gainst man (translated: they are opposed to us) . Unfortunately, even if this is a commercial reality and I offer no opinion pro or con, it finds no basis in law.
In response on November 21st Olint asked NCB for an extension to March 14 2008, NCB believing that this period was too long agreed to extend until January 14 2008. On January 1, days before the extension period was going to expire Olint without any notice successfully applied ex parte (from (by or for) one party) injunction preventing NCB from closing its accounts until January 15th. An application inter parties (between the parties) came before Mr. Justice Jones on the 17th and 18th of March. He dismissed the application because he did not find that it gave rise to a serious issue. Olint appealed and on July 18th 2008 the Court of Appeal grated the injunction until trail.
Based on the allegations in the particulars of claim served by Olint, it did not claim that the extended period was too short, ¨instead , it is alleged that the bank was acting maliciously, contrary to its statutory obligations under the banking Act and Fair Competition Act and with the intent of inducing breaches of contract between the company and members of the investment club.¨ their Lordship review each of these agreements and had no problem dismissed each in turn as being baseless.
Stay tuned for Part II.
German Multinational Loses Teapot Battle
Have a cuppa.
First posted on Commercial Law International on April 3, 2009.
It is an understatement to say that the English take their tea very seriously. And it is little wonder why a small teashop in Surrey, England, even when faced with potential financial ruin, would not back down from a much larger German multinational. This is a tale about tea better yet teapots; a David and a Goliath; and lest I forget the rights to uses a logo.
Not long after the Tea Box opened, providing an up-market alternative to the run of the mill ‘main street’ coffee shop, it was faced with a legal challenge from a Duesseldorf based company. It would seem Teekanne, which happens to mean teapot in German, took exception to the hand painted teapot logo that Tea Box was using. Teekanne claimed that it was too similar to its own logo and could cause customer confusion.
What Teekanne wasn’t counting on – I guess they expected such a small time operation to be impressed by its sized and resources and cave in but this is the UK and we are talking a bout tea but I digress. What they were not counting on was that one of the UK’s leading intellectual property firms coming to the rescue of Tea Box. Withers & Rogers LLP took on the case pro bono- for my none legal people out there this means free. This is good to see, as a profession we need more of this. The words pro bono for lawyers as become all too often associated with criminal, civil rights, family or judicial review matters, please don’t read this as a dig at the lawyer who perform such work, they are doing a great community service, however, the community can also be served when commercial law firms take on such cases.
And now back to the story.
After receiving early indications from the UK Intellectual Property Office that it would likely rule in favour of Tea Box, Teekanne promptly withdrew, great for Tea Box but not so great for Teekanne. Not did it lose money from mounting this legal challenge but it also had the effect of improving the market awareness of the Tea Box brand. You could even say that for Tea Box Commercial Awareness Is Global – hahahhahah, sorry about the cheesy plug for the site but hey I am a future lawyer trying to carve out a niche for my self.
A New MOFO for a New Year
Middle Passage Law Series
Hahahahahahah…. I know what you are thinking, but no, not the expletive. “MOFO” is in fact short for the law firm of Morrison & Foerster.
I was wondering how best to kick off the New Year with the Middle Passage Law series and I thought it best to start with positive news.
A new MOFO for a New Year refers to Trevor James, a UK tax partner in Morrison & Foerster, who has been elevated to managing partner in the firm’s London office. And, oh yeah, Mr. James just happens to be black.
This is a first for an international law firm.
Please do not misread this post. It isn’t that UK law firms are light years ahead of their Canadian counterparts in terms of black diversity — for they are not, as the UK based Black Solicitors Network’s 2008 diversity league table makes clear. However, UK law firms and the legal establishment are ahead of their Canadian counterparts in two significant ways worthy of note.
The first of these is Mr. James’ appointment — earned on merit.
What is the probability of such an appointment at a Canadian national or international law firm in the near or medium term?
To be honest I just don’t see it happening, but I could be wrong — in fact I want to be wrong.
The second area to note is the fact that such a thing as a diversity league table exists.
It is not that Canadian law firms or the larger legal establishment does not measure diversity — for they do. However, on closer examination it will be observed that these measurements are largely confined to gender. Don’t get me wrong, this is a good thing and should be lauded; however, I believe that such measures should be expanded to other diversity communities.
Why the comfort with measuring gender and the fear — yes, I said fear, because that is the only way I can characterize it — with measuring race?
I really cannot answer this questions as it is far beyond my current knowledge and skills — I want to answer it and maybe one day I will.
I didn’t mean to harp on the negative but I just wanted to make you aware, that is if you were not already, of all too real an issue.
So back to the positive.
I wish Mr. James – A New MOFO For A New Year – all the best and I hope that his current and future successes will serve as a shining example of what is possible.
What’s in a Name?
Middle Passage Law Series
“What’s in a name?”
Answer: something, nothing or perhaps everything.
The Middle Passage name was carefully chosen and is the everything of the series. A little confused, let me explain.
YES, I will make the admission right away, the name is intentionally provocative – just like the issue of race and the law. However, the name is not meant to be negative in any way; instead it is meant to provoke thought and meaningful discussion.
For those of you who are still puzzled as to the exact meaning of the name – I sure some of you have figured it out already, at least in part.
In the simplest of terms the Middle Passage Law name comes from the Middle Passage.
WHAT!!
I know I know it’s a circular definition but I can’t help it, I am a future lawyer after all.
The choice of the name is the best way, in my opinion, to make a direct connection between one of the most sinister chapters in our history – and “our” is being used here not just to mean Black/African but Canadian, indeed the world – and today’s social, political, economic and legal realities. What is this connection you may ask?
Answer: the African slave trade and its continuing legacy.
The Middle Passage and the African slave trade are so intimately connected that one cannot address one without addressing the other.
Oh No! That feeling of discomfort or elation that you felt in the series opener is back again isn’t it. You might even be thinking: ‘Here we go again! It’s always about slavery. It happened sooooo long ago, why not just get over it’ or ‘I am over it?’
Ok, ok, just relax, collect yourself and keep on reading, it will all be worth it. Trust me.
Before I respond to that – and I think my response is going to shock a lot of people – I must first give a less circular definition of the Middle Passage. To brief the Middle Passage, is the perilous voyage Africans where forced to take – to put it mildly – from West Africa to the New World to be sold into slavery.
The Middle Passage helps to explain – generally and very over simplistically – why there are Black people in the western hemisphere. However, and more importantly, its history and continuing legacy helps to explain why these people are a marginalized group.
Well, that’s enough of the history and sociology lesson but it was necessary for context.
‘So what does that have to do with me?’ Perhaps you are not black or perhaps you are but you are not a descendant from those who made the Middle Passage voyage.
Answer: everything.
Yes, everything, as hard as this maybe for some of you to believe.
For those of you that are Black but not descendant from the Middle Passage, the everything for you lies in the simple fact that you are Black. Yes I said: Black!
You, well at least some of you, may say well Yes but a different Black and you would be fully entitled to that label – if you want it. The Black community after all isn’t a monolith and the diversity within the community has to be accounted for, celebrated and respected.
Fair enough, different yes but Black none the less.
It matters little that you and or your bloodline has come relatively recently and directly from Africa, the Middle Passage directly affects you. Don’t take my word for it, take a minute and simply reflect on your own experiences in Canada.
Are you with me now? Well, I hope so. If not, this should help.
You know that feeling of exclusion or marginalization you have often felt – No, still not with me.
Ok, what about that feeling of having to prove or validate yourself constantly and many times over that of your colleagues – No or……. well maybe, am I getting closer?
Well, this should do the trick.
What about that feeling of responsibility and worse yet, normality, you are made to bear whenever a Black person is accused of a crime, while your successes and the successes of others like you are dismissed as being an irregularity or even worse yet, good for a Black person – Aha! With me now – good!
For those of you that are not Black you may think that the legacy of the Middle Passage is not yours or that it does not directly impact you. Well, you couldn’t be more wrong, it has everything to do with you.
‘What!! How could this be?’
Firstly, the history of slavery in Canada is well documented and the Middle Passage is undeniably interwoven in to the fabric of Canadian social, political, economic and legal history.
I would like to take a moment just to add a perspective on what is often considered a boring topic – History, namely Legal History. Legal History is any thing but boring, but that is simply my nerdish opinion. However, what is not opinion but fact is that legal history for student, academic and practitioner alike is always contemporary.
Legal history is always contemporary?
Yes, contemporary.
But how?
Answer: Precedents.
The study, the teaching and the practice of law are all exercises in Legal History.
Precedents are legal history, and as a corner stone of the Common Law are central to our concept and conception of justice. Thus, whether studied, taught or applied Precedents always bring legal history to the fore.
Secondly, we all live in Canada and what affects one segment of our society affects us all. If you don’t believe that or worse yet you don’t live, study or work like it’s true, it is a sad day for the legal profession, nay, Canadian society.
The sad part is not that you will not address, empathize or advocate Black or other diversity community issues and concerns but that you will not address, empathize or advocate for yourself.
‘What!! How does that work?’
What needs to be understood and often isn’t, is that by standing for justice, equality and diversity you are in fact standing for yourself. And I am not simply being altruistic here, though I must confess altruism is a factor.
The point to understand here is that you may or may not ever be in the majority but you will always belong to a minority of some sort – in thought, belief, opinion or expression. Therefore, unless you are prepared to defend the rights of others, your rights will never be secure.
The ancient Greek historian Thucydides puts it succinctly when he was asked when will justice come to Athens and he replied:
Justice will not come to Athens until those who are not injured are as indignant as those who are injured.
Now as to a response to the comment posed earlier that: ‘it’s always about slavery. It happened sooooo long ago, why not just get over it’ or ‘I am over it?’ Well, for now I say:
Stay tuned.
Middle Passage Law Series
Ainsley Brown will be doing a special series on the “middle passage law,” addressing specific areas of diversity in the law.
Welcome to the middle passage law series. This series is an attempt – hopefully a successful one – to raise diversity issues and begin a dialog between law students. Specifically, middle passage law will be black/Afro-Canadian focused.
Oh My! Here we go again.
Yes black focused. I will give you a moment to either collect yourself from the discomfort or elation you might have just felt.
Are you ok? If yes then good, if not then that’s good as well.
Middle passage law is not intended to be divisive – as divisive the issue of race can be at times. Neither is it meant to appeal only to black law students. No! Instead it is meant to appeal to all fair minded people who are concerned with justice and wish to have an open and honest discussion about issues that affect us all. And I hope that is most law students.
Why black diversity? Why indeed. The short answer is: it’s important. It is important not just to provide information but also to provide a medium in which and through which black diversity issues can be discussed in constructive, open and honest ways.
As such, it is important – and I don’t know if you are you ready for this – to admit that Canada has racial problems. And the law, as much as some would like to think or have others think is not immune.
Ok, There I Said It!
You don’t have to take my word for it – and you shouldn’t – just take a closer look at its instruction, practice or its application to see the truth.
I know, I know that feeling of discomfort or elation is back isn’t it. Relax. Take a breath, collect yourself and read on.
But why should an admission that the Canadian legal profession has problems with racial diversity trigger such a response? Would your response be the same if the admission was made about women? Why is it that we are more at ease as a profession, be it in law schools, or in firms or in the justice system, addressing gender diversity problems than we are addressing racial diversity?
This is not to say that other diversity communities are not important, for they are. Or that there isn’t tremendous overlap in both principle and substance between black diversity issues and issues facing other communities – for there is. Then why black diversity?
The answer is the aim of the series. Middle passage law is an attempt to fill a void and bring awareness to issues that affect a specifically identified community that is often overlooked or portrayed negatively in Canada – Afro-Canadians.
Middle passage law is not intended to be simplistic, nor will it be. This complexity will be reflected in the multiplicity of issues that will be tackled always bearing in mind that ultimately afro-Canadian issues are not exclusively – and put this in finger quotes – “Afro-Canadian” but are principally Canadian.
Then what’s with the name – middle passage law? Stay tuned.
Dimitris Lambrou, the Proud Lesbian Man
There are up to 350,00 Lesbians that are not gay.
Some of them are not seeking same-sex rights, but the protection of the word “lesbian” as a unique identifier of the inhabitants of Lesbos.
“My wife is a Lesbian, my daughter is a Lesbian and I am a Lesbian,” said the Greek man who started this amusing case in an Athens court last month.
Some History
Ken Blanchard provides some background,
According to Thucydides, it went down like this. The island of Lesbos rebelled against the Athenian Empire. The Athenians quickly subdued it, and then it was up to the popular assembly in Athens… to decide what to do with the rebellious islanders. The assembly voted to kill all the adult males, and sell the women and children into slavery. Frees up a lot of real estate. A boat was sent out (powered by rowers) to inform the marines on Lesbos as to their duty. But the next day a shrewd speaker convinced the assembly to reverse its vote. So they sent out a second boat, with a reward promised to the rowers if they got there in time. They did. And so the Lesbians were saved. The male Lesbians that is.
The name Lesbos apparently comes from the patron god of the island, who was the son of the Thessalonian hero Lapithos, or alternatively comes from the word for lush vegetation.
But its association with gay females is traced back to a poet that inhabited it named Sappho, who lived around 530-670 B.C.E. Sappho wrote on a number of subjects that included passionate prose that included targets of the same sex.
Rename the Island instead of Lesbians
Dimitris Lambrou, a contemporary inhabitant of the island, is petitioning the courts against the Greek Gay and Lesbian Union (Olke) from using the name “lesbian” in their name. He claims that the human rights of the islanders have been violated because it disgraces them around the world. Presumably, he would continue his case to the national and international level as well if he was successful.
Granted, Labrou does use some very strong language, claiming islanders have suffered “psychological and moral rape” from the “seizure” of the use of the word “lesbian.” Although women raping men is far more rare, it does happen.
One 36 year old woman in Spokane County in the U.S. was convicted in 1997 of torturing and raping a 42 year old man. South African papers reported last year that men in that country are being raped without the use of a condom, a scary proposition considering HIV/AIDS rates there. Then of course there are the stories of pedophilia, usually involving a female in a position of authority such as a teacher.
But rape of the psychological and moral kind, and corresponding damages, are unlikely even under Greek law.
Lambrou also claims the Greek government is so embarrassed that they are renaming the country’s third largest island as Mytilene.
There are several other reasons for viewing Labrou’s concerns with skepticism.
Not an Aggressive Act Against Women
Lambrou has explained his motivations,
I’m a fan of old values and traditions.
He publishes a magazine promoting ancient Greek culture and religion, and frequently criticizes the Catholic Church.
Jane Czyzselska says in Beware of Greeks bearing prejudices,
While lesbians in more than 80 countries are still denied their basic equal rights and more than 50 per cent of Britain’s lesbian youth are bullied, poor old Lambrou and his sister are upset that use of the word violates the human rights of the islanders and disgraces them around the world. Clearly, Hellenics hath no fury like a lesbian scorned.
However Labrou has said,
This is not an aggressive act against gay women. Let them visit Lesbos and get married and whatever they like. We just want [the group] to remove the word lesbian from their title.
A Genericized Global Trademark
The other issue with the claim is that the word “lesbian” is similar to a proprietary eponym, when a supposed brand name under intellectual property rights enters the colloqial landscape and synonmous with the general term.
Examples of genericized trademarks include Band-Aid, Kleenex, Jell-O and even Google. If your brand is too successful, you actually lose your intellectual property rights towards it.
He bases his claim on the first in time, first in right principle, which can still applicable for domain registration,
Lambrou said the word lesbian has only been linked with gay women in the past few decades. “But we have been Lesbians for thousands of years.”
The word “lesbian” has been used all over the world in this manner, and has been for some time.
Rictor Norton traces the use of the term in A Critique of Social Constructionism and Postmodern Queer Theory, “The ‘Sodomite’ and the ‘Lesbian,’ to at least 1732 in William King’s The Toast. By 1890, it had entered the Oxford University Dictionary, indicating a genericide for some time now.
Blanchard also adds the numerous sporting teams that use as their mascots or team names indigenous peoples and tribes that would seek similar intellectual property protection.
Absurd Consequences
Hauke Goos describes the scene in the court,
Lambrou sat in the gallery, surrounded by Greek gays and lesbians. He seemed convinced that the case was progressing in his favor. But then the opposing party’s attorney cross-examined the witness. What about twins whose bodies are joined at birth? he asked. Wouldn’t he, the witness, refer to them as Siamese twins? “Yes,” the witness replied. “Don’t you think the Siamese might object to that?” He hadn’t come to Athens to discuss the problems of the Siamese, the witness said curtly.
We can think of similarly absurd consequences, such as the residents of Dildo, Newfoundland issuing a suit against the sex toy industry. Steve Pitt commented in Legion Magazine in 1994,
No one can say with any firmness when and why Dildo acquired its name, but there are plenty of theories to choose from. Some say Dildo was named after a Spanish sailor of the same name who sailed the waters of the area. Others claim Dildo Bay was named after a ship’s part, a long metal cylinder. Still, others assert that Dildo, Nfld., is named for a certain species of cactus, the Dildo-Pear Tree, found only in the Caribbean. Still others hold to the theory that Dildo was named after an archaic term for a song’s chorus. The word is used that way by Shakespeare in A Winter’s Tale, Act 4, Scene 4: “…with such delicate burdens of dildos and fadings.”
And then there is the Amish town of Intercourse, Pennsylvania.
You can see where we are going with this…
Updates
The decision for the case was released July 18, and published today. The court rejected the plaintiff’s claim and said that the term could be used by gays, and said that Lambrou was free to appeal.
Michelangelo Signorile claims that Lambrou has been living in Canada for the past 30 years, which adds yet another interesting twist.
Back in Canada, legal lesbians are losing their jobs.
h/t Ainsley Brown of University of Westminster law and UWO law
