Civil Section Minutes 2007

Québec Law and the Hague Convention on Choice of Court Agreements of 2005

Présenter: Frédérique Sabourin, Professeur, Faculté de droit, Université de Sherbrooke

Professor Sabourin was a member of the Canadian delegations involved in negotiating the Convention, from 1996 to its conclusion in 2005. The object of her report was to set out the differences that exist between Québec law and the Convention, in general terms, focusing on the three key obligations in the Convention:

  • the obligations of the court chosen by the parties;
  • the obligations of a court that is seized of a matter but is not the ‘chosen’ court; and
  • the obligations of a court asked to enforce the judgement of the ‘chosen’ court.

There are many similarities between the Convention and Québec law which should facilitate implementation of the Convention. Professor Sabourin noted, though, that Québec has certain restrictions as well. For example, certain provisions of Québec law prevent recognition and enforcement of a foreign court decision when the case concerns civil liability for any harm suffered in, or outside, Québec as a result of exposure to, or the use of, raw materials, whether processed or not, originating in Québec. Careful thought needs to be given to the scope of any declaration that might be made under Article 21 of the Convention.

Professor Sabourin then highlighted areas of difference or concern, including:

  • the Convention provides that the jurisdiction of the chosen court is “exclusive” unless the parties to the agreement state otherwise;
  • the Convention requires the agreement to be in writing, which may raise questions respecting agreements formed electronically;
  • cases where all elements except the choice of court arise in the same jurisdiction;
  • a ‘chosen’ court cannot withdraw on the basis of forum non conveniens (this would require an amendment to Québec law);
  • in light of a recent decision of the Supreme Court of Canada, in Québec law it is possible to reduce the quantum of damages and interest awarded when enforcing a foreign judgment. This is not reflected in the Convention.

Professor Sabourin noted mixed feelings about the Convention – it is a complex document, involving a significant investment of time and resources, for one with such a limited scope. However, it is a small, but positive, step in the right direction as it provides some certainty to parties to an agreement that falls within its scope, and provides them with a real choice between using the courts and using arbitration to resolve disputes. Professor Sabourin recommended that the Conference establish a working group to see how the Convention could be implemented in Canada.

Discussion:

Kathryn Sabo (Canada) noted that it is important to look closely and critically at the Convention. The status quo respecting enforcement of foreign judgments needs to be kept in mind – as Canada currently enforces foreign judgments broadly, we need to be aware of what might be lost under the Convention. Having said that, the gain may be the ability to enforce our judgments elsewhere – the Convention is a tool with the potential to be of assistance.

RESOLVED: (see the resolution respecting the Paper on The Hague Choice of Court Convention and the Common-Law).

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