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I'm kind of on board with this, at least insofar as it relates to choice of forum, if not choice of law. That said, I have a harder time thinking that you can contract out of Canadian competition law, which is what you're effectively suggesting. Contract law, at least in Canada, is always subject to the law of the land. If you're an expert in jurisdictional law, I'll defer to you on this point and I'm too lazy to research it at the moment, but I've got serious difficulties in thinking that Canadian law is simply irrelevant in a situation like this. This isn't like choosing what state's law will govern a transaction. Otherwise, you'd think that NHL teams would agree that all of their disputes would be subject to the law of Russia, or some state where there is no competition law and then just do whatever the **** they wanted.
You toddle off to watch a basketball game, and all of a sudden a legal discussion springs up in one's absence. That will teach me.
Having done many an international transaction in my life, I think I feel pretty confident in opining on these matters. I can certainly understand the confusion and differing opinions that appear to be raging on these points. MCG, I am not sure if there is such a thing as a pure "jursdictional law" expert. It is kind of one of those things you pick up if you get involved in matters requiring an understanding of the issues. Even then, it is often not all that clear cut. To be frank, this is an extremely murky fact situation even for me, and I do have some experience in this stuff.
That beng said, there are a couple of things worth pointing out:
1. It is trite law that, in a commercial setting, the parties are free to contract in or out of whatever they wish to do so. The one exception to that is that they cannot do so in such a way as would violate public policy. One cannot enforce a contract between two parties to engage in criminal behaviour, for example. However, it is not contrary to public policy to select the choice of laws and/or the choice of forum, which was the matter under discussion. This is routinely done. In theory, perhaps a North American court might have difficulty if the choice of law involved, say, the laws of some middle eastern country that employed "eye for an eye" laws. However, as for this scenario, if the NHL requires that all disputes be governed by the laws of New York and that the parties must attorn to the courts of New York, that certainly is enforceable.
2. In referring to the above exception regarding "public policy", please do not think that is a way out. In the current fact situation, IB is not suggesting that the parties would agree that the "laws of the land" would not apply. IF he is, he would be wrong. What I think he would be saying is that US competition law would apply instead of Canadian competition law in a dispute between the NHL and Balsillie, if the constitution or the NHL's consent agreement so provides.
3. I hate to give a wishy washy opinion (as those who read my posts here can attest to), but in fact you are both partially right in what you are saying. MCG, when you say:
Sort of. It gets to choose who owns a team, sure. As for the conditions, those are of course subject to the law of the land. In Canada, at least, an illegal contract is unenforceable. If there are provisions on relocation that contravene the Competition Act, than they're out of the contract.
That is partly right. Contracts are subject to the laws of the land, but in a commercial context it is primarily (but not entirely) the laws of the land which have been selected by the parties as the governing law of the contract. Again, that is subject to the public policy exception I noted above. Again, it is not illegal in Canada to contract with a party that US laws apply, although two parties could not (for example) decide that the Criminal Code does not apply as between them. In that sense, the Competition Act would not apply as between the parties. THe anti-trust provisions for the US would arguably apply, if the parties have a dispute as between themselves. Balsillie would be estopped from arguing otherwise, being a sophisticated commercial party.
However, that is not to say that the Competition Act disappears. It is designed as an act that acts to protect the public. As such, if someone other than Balsillie made a complaint, or if the Act permits the Bureau to act unilaterally, then the Act would apply. It would not be a contractual matter as between the parties.
Overlaid on top of all that is whether Balsillie would be stopped before it becomes a matter within the jrisdiction of the Canadian entities. IF Balsillie is rejected as an owner, for example, I seriously doubt whether the Canadian authorities would be seized of the matter. At that point, it is a US entity (the NHL) being accused of acting anti-competitively against another US entity (Balsillie's acquisition vehicle to purchase the Preds - I assume US to avoid potential tax consequences) with respect to a US-located team (the Nashville Predators). See, at that point, Balsillie's team is not even a Canadian-located team, so it probably does not even matter if Balsillie's acquisition vehicle is a US or Canadian entity, as its operations are outside Canada.
THAT BEING SAID, one of the unfortunate aspects of jurisdictional law (unfortunate in that it creates uncertainty) is that sometimes the courts simply decide that they want to be seized of a matter. As such, if Balsillie were to launch a Competition Act challenge, the Competition Bureau could decide that it wants to go ten rounds with the NHL through the courts. IF the courts decide they want to be seized of the matter, there are a number of different criteria that determine forum conveniens and there is some flexibility in deciding whether contracts are in violation of public policy. If I had to choose, I would suspect (not having seen the documents) that the NHL would have the better position, but certainly not an impregnable one.