Part One – Adjudicatory Jurisdiction

Part One – Adjudicatory Jurisdiction

Scope of Jurisdiction

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  State immunity is recognized generally. It is not absolute, but it is recognized through the State Immunity Act (don’t have to know it all, but be aware of it).
  
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  Matters subject to Treaty, such as the Carriage by Air Act, ss. 28,29 (below)
  

(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.

(2) Questions of procedure shall be governed by the law of the Court seized of the case.
Article 29

(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

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  Exclusive Jurisdiction can also be taken by courts for certain processes.
  

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  Jurisdiction is term that carries a lot of meaning in law, often being synonymous w/ competence and power.
  
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  Jurisdiction is established by law and it is given in the same way that it is limited (by constitution, legislation e.g.)
  
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  Jurisdictional issues are not limited to PrIL. E.g. Contracts, for example, have divided jurisdiction in Quebec based on the value of the case: under $8000  small claims, upto $70,000  Court of Quebec, over $70,000  Superior Court.
  
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  In Qc, source of jurisdictional authority is the CCQ, read w/ CCP and Constitution Acts
  
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  Do we need rules establishing what factors are sufficient to give jurisdiction to a specific court? If we didn’t have these rules, there would be problems of sovereignty and comity. PrIL likes to think that it is separate from Public International Law, but it is still concerned with these fundamentally public concepts that have to do with the proper division of power.
  
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  Sovereignty = Idea that each state has power over the things and people within its own border and conversely does not have power over things and events that fall within the purview of some other sovereign.
  
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  Idea behind PrIL is that there should be limitations on our courts (which are delegations of sovereign powers).
  
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  Constraint of exercise is that there should be a legitimate nexus/connection to a particular court. That idea is necessary and practical.
  
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  There is self-interest in exercising self-restraint in jurisdiction. If states purported to exert exorbitant jurisdiction, its judgments would not be respected, nor its courts, and, ultimately, nor would the state. Ultimately, this is disrespectful to sovereignty.
  
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  Voluntary consent has no bearing w/ jurisdiction. i.e. If both parties agree on Qc, then that’s ok. But more often they’ll agree to arbitration.
  

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  Sovereignty is challenged by asserting that power over that area without adequate reason.
  
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  Legitimacy is challenged when trying to apply that judgment in the supposed original jurisdiction.
  
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  Do Quebec Courts (or Quebec society/taxpayers) have any interest in foreign dispute resolution?
  

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  Jurisdiction originally arose from the idea of physical power over an individual person. It was extremely territorial.
  
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  This idea led to the traditional CML basis of jurisdiction (also manifested in Quebec Civil law to a certain extent) - presence of the Df w/in your borders (but this allowed fleeing!)
  
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  This rule was devised by UK courts to protect Eng debtors from the effects of foreign judgments. However, it also harmed Eng creditors whose creditors fled other countries. So jurisdiction expanded to include subject-matter provision (i.e. Eng court could have their orders served abroad).
  
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  This changed w/ devts in intl law as mobility and complexity of commerce was taken into account, but slowly.
  

A. Basic areas of jurisdiction

1. Where the parties are within the province

3134. In the absence of any special provision, the Québec authorities have jurisdiction when the defendant is domiciled in Québec.

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  No need for subject-matter connection here or in 3148.
  
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  This is very general rule “in the absence of any special provision…” that can include actions in K, ECO, etc.
  
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  This kind of provision ensures that there is always one court where you can sue someone in.
  
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  For ships it depends on what nation’s waters the ship is on.
  

Rule 3134 is the general rule. Everything thereafter moves to specificities.
3141. A Québec authority has jurisdiction to hear personal actions of an extrapatrimonial and family nature when one of the persons concerned is domiciled in Québec.

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  Within personal actions we are divided to extra-patrimonial and family, and patrimonial personal actions.
  
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  Here the big thing is that it only requires one of the persons concerned to be domiciled in Qc.
  
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  3142 and ss deal w/ family issues such as filiation. [We’ll look a bit at divorce at the end]
  

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where

1) the defendant has his domicile or his residence in Québec;

2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec; (…)

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  In 3148, the first sentence is in distinction to that provided in 3141.
  
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  Notice it says a residence and not the residence.
  
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  Under 3148 (2) more specifics are given. It’s not necessary for jurisdiction to have your head offices here, but it’s enough if you have branch offices here and if the disputes regard the actions of that branch in Qc.
  

2. Voluntary submission of the defendant

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where (…)

4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a specified legal relationship;

5) the defendant submits to its jurisdiction.

However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

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  Relatively straight forward and not a matter of much debate (not even in Hague convention)
  
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  Rule explores two possibilities where .
  

1. 
   by agreements in contract (ie when buying online)
   
2. 
   by being attorned (ie Df submits to jurisdiction by showing up or responding to action)
   

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  Last para. important bc it means courts will hold you up to it if you’ve voluntarily relinquished Qc jurisdiction.
  

3. Subject matter connection

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where (…)

3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec (…)

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  3148 (3) deals w/ property, torts and contracts.
  
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  First 3 conditions have more resonance in area of extra contractual liability.
  
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  “Injurious act occurred in Qc” refers to strict-liability regimes (e.g. no-fault insurance, vicarious liability, contract breach). (Lebel in Spar)
  
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  “Damage was suffered in Qc”  similar to Ontario and other CML rules of procedure.
  
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    Damage suffered really broadens the jurisdiction because of the temporal distance or exaggerated geographical distance that can exist between the fault/act and the damage (e.g. pain and suffering following a car accident overseas, damage from contract breach overseas).
    

Directory: pubdocs -> files -> privateinternationallaw
files -> Chapter 1: Property as rights, not thing
files -> Insurance Law – May 4
files -> Contractual Obligations – Prof. Helge Dedek Introduction 1
files -> Constitutional Limits on Criminal Law 1
files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law
files -> Part I: conceptualizing and justifying ip space 3
files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
files -> Topic One Seaworthiness and Common Venture, chapter 15
privateinternationallaw -> Tetley (2002) introduction to conflict of laws 5

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