B. Contractual Obligations

Special Contracts

  1) negotiations have taken place and the contract has been formed in that country;

2) the contract provides expressly that delivery shall be made in that country;

  3) the contract is formed on terms determined mainly by the buyer, in response to a call for tenders.

If no law is designated by the parties, the sale of immovable property is governed by the law of the country where it is situated.
3115.  Failing any designation by the parties, a sale by auction or on a stock exchange is governed by the law of the country where the auction takes place or the exchange is situated.
3116.  The existence and scope of the powers of a representative in his relations with a third person and the conditions under which his personal liability or that of the person he represents may be incurred are governed by the law expressly designated by the person represented and the third person or, where none is designated, by the law of the country in which the representative acted if the person he represents or the third person has his domicile or residence in that country.
Capacity has generally been attached to domicile. However, this rule, unqualified, could result in a fair degree of uncertainty when parties contract abroad.
Could then two parties from country X choose the law of capacity from country Y? Yes in theory, but it might be met by public policy considerations that would limit this ability.
You can choose the law you want, but the mandatory rules of the other country still apply. These are rules of public order that are not waivable by the person subject to the rule. It is not subject to chosen against.
3117.  The choice by the parties of the law applicable to a consumer contract does not result in depriving the consumer of the protection to which he is entitled under the mandatory provisions of the law of the country where he has his residence if the formation of the contract was preceded by a special offer or an advertisement in that country and the consumer took all the necessary steps for the formation of the contract in that country or if the order was received from the consumer in that country.
The same rule also applies where the consumer was induced by the other contracting party to travel to a foreign country for the purpose of forming the contract.
If no law is designated by the parties, the law of the place where the consumer has his residence is, in the same circumstances, applicable to the consumer contract.

Consumer protection laws are an example of mandatory law protected in private international law.
The protection requires one of two requirements to be met:

1. 
   offer or advertisement AND steps necessary to the formation in the country of residence
   
2. 
   order received from the consumer in the country of residence
   

This is coupled with protections in the jurisdiction rules that say that a choice of law or arbitration cannot be set up against a consumer. Otherwise, a consumer could not get into court to vindicate their rights.

Employment law is also mandatory in nature and protected. This is so even when the employee travels.

Any sum due under a contract of insurance governed by the law of Québec is payable in Québec.

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  So legislature has specifically addressed possibilities where law of contracts may have left a void.
  

Does the existence of these specific rules weaken the residual rules on mandatory provisions overriding a choice of law agreement? No. The residual rules are clear enough in their intent and therefore in their interpretation. The special rules simply remove from the need for interpretation the most common situations of mandatory law.

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  One of three residual mandatory rules is article 3111, para 2  this provisions means you can have entirely domestic fact patterns and the parties chose laws of anywhere else but then para 2 brings the exception that K still subject to law of country which would apply if none were designated. Which brings us to gen rule of 3112.
  
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  3112 expressly says that if I have entirely domestic contract, the most closely connected law is Quebec.
  

Example: If you have a Quebec fact situation, you can still choose a foreign law. Otherwise, if there is no choice of law agreement, Quebec is obviously the law most closely connected (CCQ 3112). However, if an Ontario fact pattern has a Quebec choice of law, then Ontario mandatory rules are likely still to apply regardless of the choice.

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  3076 and 3079 apply to preserve the continued application of Quebec mandatory rules even where there are international elements. 3079 provides for preservation for mandatory rules of a third country.
  
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  Mandatory rules does not mean the same thing in article 3111 para 2 as it does in articles 3076 and 3079. Not every rules that qualifies as mandatory rule in purely domestic context qualifies under 3076 or 3079. Where Qc legislatures have said rules cannot be waived, then domestic rules apply.
  

CCQ 3076, 3077 also provide for residual mandatory law. They are preservation rules. Ideally the legislation that wishes to take advantage of this scheme will be explicit. However, in other cases, it can be obvious.

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  Appeal by Airtours that Ont law was applicable law.
  
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  Roy went on vacation, got virus bc of alleged unsafe conditions and failure to warn about these conditions.
  
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  Roy waited until more 3 years afterwards to sue.
  
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  R sued NAm Leisure Grp and Airtours in K and tort. NAm accepted Ont law. Airtours says law of England applied.
  
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  English law would preclude action against Airtours as per 2-year limitation period.
  
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  Vacation literature indicated English law applied to Airtours. Trial judge said Ont law applied to both Df. bc of R&S connection and bc to apply law of Eng to preclude Roy action against Airtours would be an injustice.
  

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  Jurisprudence (Tolofson in particular) sets as general rule in tort the choice of substantive law was law of jur’n where activty occurred (lex loci delicti). It provides 3 adv to parties: certainty, ease of application and predictability
  
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  That Roy would suffer injustice by operation of limitation period does not justify exception to principle informing the choice of law. Tolofson (and Somers) already determined limitation period not to be such an exceptional case.
  
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  That diff laws needed to be applied to diff Df (Ont law to NAm and Eng law to Airtours) does not justify an exception either.
  
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  K stipulated law of Eng. That Roy didn’t read that term was not determinative of result. Reasonable measures were taken to draw any unusually onerous terms to their attention.
  

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  Rule for choice of law in tort is lex loci delicti (even in international actions).
  
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  Exceptions to lex loci delicti rule needs to go beyond mere injustice and prescription is not injustice.
  
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  It is possible to apply diff laws to diff Defendants.
  

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  I think this may be overturned by SCC. Interesting to research if they heard the case.
  

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  Action before Ontario Courts but issue of which prescription period applies depends on whether Ont law applies
  
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  3 contending laws here for choice of law: law of England (law of K), law of Ontario or law of Bahamas (lex loci)
  
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  Cruise ship operator had choice of law clause stipulating English law as applicable law.
  
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  Only under Ontario law is the action not barred by the period of extinctive prescription.
  
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  Two contractual relationships exist (tour operator, cruise ship operator and owner, each with K to vacationer)
  
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  The action is brought against the owner and operator.
  
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  Had lex loci delicti been applied, law of Bahamas would’ve taken precedence.
  
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  So far as contract choice of law is concerned, consumers (Pl) wanted exception since they didn’t read or understand the clause.
  
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  Court agreed with this in principle, saying that in certain situations exceptions can be made given so consumer is not bound by onerous and abusive provisions, but that application of English law is neither.
  
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  Court raised technical issues informed by policy decisions. Explore these by doing comparison w/ CCQ approach to torts (ie 3127)
  
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  But this is consumer contract. So in Qc they could invoke 3117: can chose foreign law but it cant deprive consumer of protection he’s entitled under mandatory provisions of law of country where he resides.
  
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  CCQ provision says you are agreeing to choice of law provision that may be unknown and hold you to it but make sure that whatever rules in place of residence will continue to protect consumers. Had this case been brought in Qc court, then Qc court would have applied Qc choice of law rules and said applicable laws included Qc protections and 3 yr prescription would’ve been preserved.
  
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  Walsh big fan of Qc Civil Code bc it protects consumers in clear and enforceable way.
  
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  Debate on special consumer protection laws is kind of debate that happens in all PrIL negotiations that ends the negotiations. US, eg, would never agree to this special protection to consumer being preserved.