Private International Law – Prof. Walsh Summer 2005



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Private International Law – Prof. Walsh - Summer 2005

by Martin Doe and Miguel Bernal-Castillero





Introduction 3

What is the conflict of laws? 3

Do we need it? 3

Terminology 3

Law Units within Canada 4

Interprovincial choice of law 4

Basic Definitions 4

Part One – Adjudicatory Jurisdiction 5

Scope of Jurisdiction 5

A. Basic areas of jurisdiction 6

1. Where the parties are within the province 6

2. Voluntary submission of the defendant 6

3. Subject matter connection 7

B. Exceptions and Specific Jurisdiction 7

1. Consumer, Employment and Insurance contract matters 7

2. Declining jurisdiction 7

3. Exceptional jurisdiction 8

4. Supplementary or Incidental Jurisdiction 8

C. Case Law 9

CVL – Spar Aerospace Ltd. v. American Mobile Satellite Corp. [2002] 4 S.C.R. 205 9

CVL – Worthington Corp. c. Atlas Turner Inc. [2004] IIJCan 21370 (Qc C.A.) 10

Insurance Corp of British Columbia v. Unifund Insurance Company [2003] 2 S.C.R. 63 12

D. Reform Legislation 14

Part Two – Foreign Judgments 15

Parameters of Forum of Inquiry 15

2 Conditions for Recognition of Foreign Judgments 15

1. Jurisdiction of Foreign Authorities 16

2. Finality Requirement 17

Defenses Against Recognition 17

1. Procedural Fairness Requirement 17

2. Taxation Exception 18

Other ways of Revoking 18

1. Public Order 18

2. Conflicting Judgments 18

Traditional Common Law Rules 19

Case Law 19

Morguard Investments Ltd. v. De Savoye [1990] 3 SCR 1077 19

Hunt v. Lac d’Amiante and T&N [1993] 4 SCR 289 21

Beals v. Saldanha [2003] 3 SCR 416 22

Parsons v McDonald’s [2005] Ont CA 25

Reform Legislation 27

Uniform Enforcement of Canadian Judgments and Decrees Act 27

Uniform Enforcement of Foreign Judgments Act 28

Part Three – Choice of Applicable Law 30

A. Choice of Law Methodology 30

Characterization 30

Renvoi 31

Procedure 32

B. Contractual Obligations 32

General Rules 32

Form 33

Capacity 33



Special Contracts 34

Roy v North American Leisure Group Inc., [2004] Ont C.A. 246 DLR (4th) 306 36

C. Extra-Contractual Obligations / Torts 37

Tolofson v. Jensen [1994] 3 SCR 1022 – lex loci delicti 38

Somers v. Fournier [2002] Ont C.A. 214 D.L.R. (4th) 611. 41

Defamation 44

Products Liability 44

D. Domestic Relations (en passant) 44

Jahangiri-Mavaneh v. Taheri-Zengekani [2003] Ont Superior Court 39 RFL (5th) 46

E. Property (en passant) 46

F. Exceptions 47

1. Public Policy/Public Order 47

2. Proximity Principle 47

3. (International) Mandatory Rules 47

Society of Lloyd’s v. Saunders [2002] ILR 1-4047 – strict public policy grounds for non-enforcement 48

Muscutt v. Courcelles [2002] Ont C.A. 53



Bangoura v. Washington Post case 53


Introduction


  • Private Intl Law, sometimes called the ‘conflict of laws’ is that part of a domestic legal system which comes into operation whenever a legal situation with a ‘foreign’ or extra-jurisdictional element arises.

  • Generally sub-divided into 3 basic parts:




  1. Adjudicatory jurisdiction: when will a court assume the authority to adjudicate disputes involving parties or events located wholly or partly outside the borders of their jurisdiction – i.e. a foreign element? Concerned about the cross boundary areas of the law. E.g. a Quebec company doing business with a US carrier delivering goods to Mozambique. Which courts can or should deal with this relationship?

  2. Recognition and enforcement of Foreign Judgments: On what basis do local authorities give effect to judgments and orders issued by foreign courts and tribunals? It is an appeal to be able to depend on the local enforcement mechanisms.

  3. Choice of Law: What rules or principles determine whether a dispute should be governed by local law or by law of some legal system to which the dispute is factually connected? Which laws will the courts draw upon? If tort happens here, will take laws from here, e.g.



What is the conflict of laws?


  • “Conflict of laws” implies conflict bt laws and need to make choice bt them.

  • It is necessarily pluralistic and national  can differ from legal system to the next, at least in absence of any positive super laws such as treaties and constitutions.

  • This can be bt States (w. would be Public Intl Law) but also among territorial or community units w/in state.

  • Hence PrIL has special practical importance in federal states such as Canada.

  • In Public Intl Law the actors are sovereign states and the focus is on intl law from high level of interstate relations.

  • PrIL concerned w/ private law and private individuals and the implications that we are mobile population and things can happen to us when we travel that give rise to legal implications – from family relationships to commercial ones.

  • Must know the different ways in which diff legal systems may answers certain questions (such as ECO).

Main sources Book X of CCQ and case law from Can CML provinces. Also intl conventions that aim to achieve uniformity amongst intl, natl and provincial laws.

Do we need it?


  • Uniform intl or multilateral rules would reduce uncertainty and complexity and avoid conflicting results.

  • Aim is to reduce forum shopping. This has taken more importance w/ globalization of markets and trade.

  • We’re concerned mainly w/ private law conflicts. In Canada these are prov power (as per BNA Act 1867)

  • For most areas of private law it is just as possible to have conflict of laws btwn Ontario and Qc as btwn Qc and France. In federal system you have potential for conflict of laws issues to be addressed both btwn and among particular units of the federation as btwn prov units and other countries.

Terminology


  • Lex Loci delicti: where the tort occurred. Very important in CML

  • Common domicile exception: if both parties share a common domicile, then those are the rules that will apply and not where the injury occurred. Is important in CVL (though lex loci delicti is also a general rule)

  • The Forum: the place where the dispute is litigated. It’s the Pl’s choice, so he can do forum shopping.

  • Lex fori: the law of the forum

  • Lex loci contractus: law of the place of the contract (where it came into being or where it stipulates it is to be governed)

  • Lex rei sitae law of the place of the thing, where it is located.

  • Lex loci celebratius: law of the place where the ritual was celebrated (ie marriage)

  • Lex domicili: law of domicile of corporation or individual.

  • Forum non conveniens: inappropriate forum



Law Units within Canada


  • By virtue of Federal composition of Can, there are diff legal issues are subject to legislative jurisdiction at the provincial or territorial level and there is corresponding need that there will be choice of law.


Is uniformity of outcome a desirable or achievable aim?

  • Issue of autonomy of state.

  • Conflict of law strives to have solution to be the same regardless of where the proceedings take place.

  • The goal is for there not to be forum shopping



Interprovincial choice of law


  • There is territorial limit placed by the constitution on the courts

  • We’ll be looking in choice of law rules.

  • Provinces have overriding statutory regimes for certain areas – e.g. securities.


3077.  Where a country comprises several territorial units having different legislative jurisdictions, each territorial unit is regarded as a country.

Where a country comprises several legal systems applicable to different categories of persons, any reference to a law of that country is a reference to the legal system prescribed by the rules in force in that country; in the absence of such rules, any such reference is a reference to the legal system most closely connected with the situation.




  • This is article that tells us that in certain context territorial unit implies a country or a province or a state.

  • Para 2 relates to successions, family, religious affiliation, etc. This goes according to membership in a community, not necessarily by territory.

  • Within Canada, Para 2 would have application in aboriginal communities where they are considered to have self-govt with specific rules based on membership.

  • These rules do not depend on where you live, but who you are and what community you are a part of



Basic Definitions


  • Comity – “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” (from Hilton v. Guyot, 159 U.S. 113 (1895), referred to in Morguard and Spar)

  • Order –

  • Fairness –

HE Yntema, The Historical Bases of Private International Law and http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl/ can provide a good overview.







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