Hague Convention Choice of Court Agreement - Quebec Law 2007

Conclusion

[58] Following this comparative analysis, it may easily be concluded that the Convention and Quebec civil law reveal great similarities, which should facilitate the implementation of the Convention. Indeed, the duty of the court chosen by the parties to hear the case, that of the court seized but not chosen by the parties to stay proceedings and that of the court asked to recognize and enforce the judgment given by the chosen court are found in both the Convention and Quebec law. The exceptions to these principles are also usually the same. Finally, the problem of the relationship between an incidental demand in guarantee under article 3139 C.C.Q. and the choice of court clause has been resolved by the Supreme Court, which has thus brought Quebec law into line with the Convention.

[59] Furthermore, the Convention leaves a great deal of Quebec law intact. Thus, the Convention has no effect in the case of an employment contract or a consumer contract, the internal allocation of cases is not affected and it is possible for courts in Quebec that are not chosen to continue to order provisional or conservatory measures (art. 3138 and 3141 C.C.Q.). Finally, the recognition and enforcement procedure remains as set out in Quebec law.

[60] However, the Convention and Quebec civil law differ on certain points. Thus, the Convention establishes a presumption that the choice of court clause is exclusive. The field of application of the Convention is narrower than that of Quebec law because of the concepts of internationality and the formal requirements adopted under the Convention. Contrary to what is provided for in the Convention, the forum non conveniens principle could play a role in this regard in Quebec law (art. 3135 C.C.Q.),[96] whereas a referral is excluded (art. 3180 C.C.Q.) and the possibility of reducing the quantum of damages and interest awarded finds no echo. In all these cases, Quebec law should be changed to bring it into line with the Convention if the Convention is to be implemented.

[61] Also, certain provisions of Quebec law prevent a Quebec court that is not the chosen court from staying proceedings and prevent recognition and enforcement of a foreign decision when the case concerns civil liability for any harm suffered in, or outside, Quebec as a result of exposure to, or the use of, raw materials, whether processed or not, originating in Quebec (art. 3151 and 3165 C.C.Q.). Here, a declaration that is allowed under the Convention might make it possible to bring Quebec law into line with the Convention if the Convention is to be implemented.

[62] In some respects, the Convention is more explicit that Quebec civil law since the Code and the authors are silent and the courts have not yet had to decide the question.

[63] Sometimes, similar solutions may be inferred, such as one respecting the severability of the choice of court clause from the main contract. However, it would be more prudent if Quebec law were amended to facilitate the implementation of the Convention. Such amendments would have the advantage of dispelling some of the uncertainty that may exist. The same holds as to the use of the law of the chosen court (substantive law or including the conflict of laws rules) to determine the validity of the agreement (including the parties’ capacity to enter into the agreement) and the law of the court seized but not chosen or the law of the requested court (substantive or including the conflict of laws rules) to determine the capacity of the parties to enter into the agreement.

[64] Unfortunately however, the Convention, which otherwise provides detailed rules on such a limited subject, does not provide more explanations than Quebec law as to the phrase “has effect” in the State of origin of a foreign judgment and its impacts on statutes of limitation. What is more, the law governing the nullity of the choice of court clause on the ground that there is no meeting of minds between the parties or that it is abusive in a contract of adhesion will undoubtedly continue to be a source of controversy. It seems that, in these cases, only the future will cast light on these questions as a result of the development of the international judicial decisions that apply the Convention in the States that are parties thereto.[97]

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