Activities and Priorities of Dept. Justice in Private International Law 2003

II. INTERNATIONAL ORGANIZATIONS

A. THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

[17] The Hague Conference on Private International Law, which held its first session in 1893, has 62 Member States, including Canada since 1968. Its objective is to work toward the progressive unification of rules of private international law. The Permanent Bureau, the small secretariat of the Conference, is responsible for the administration and supporting research. Its working cycle is approximately four years, at the end of which the Sessions of the Conference are convened, attended by all member States. The member States also meet during the intersessional period in "Special Commissions", which develop draft conventions to be adopted at the next Session. The Hague Conference has adopted 36 conventions, 27 of which are in force. Further information on The Hague Conference on Private International Law may be found at http://www.hcch.net.

[18] The 2001-2004 work programme was adopted in June 2001 and April 2002 and it includes continued work on jurisdiction and enforcement of judgments and a new convention on maintenance obligations.

[19] Over the last year, Canada participated in the following activities of the Conference: the Part II of the 19th Diplomatic Session in December 2002, experts and drafting group meetings, Special Commissions and the Special Commission of April 2003 on general affairs and policy of the Conference.

[20] Canada is party to four Hague Conference Conventions in private international law: the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters (adoption 1965, in force in Canada 88/05/01); the Convention on the Civil Aspects of International Child Abduction (1980, Canada 88/04/01); the Convention on the Law Applicable to Trusts and on their Recognition (1985, Canada 93/01/01); and the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (1993, Canada 97/04/01). Not all jurisdictions in Canada have implemented all 4.

B. UNCITRAL

[21] The United Nations Commission on International Trade Law, the core legal body within the UN system in the field of international trade law, aims to further the progressive harmonisation and unification of the law of international trade. To reach this goal, the Commission uses various instruments: it has prepared 9 conventions, 7 model laws, uniform rules and a number of legal guides. Further information on UNCITRAL may be found at http://www.uncitral.org.

[22] Recognizing the growing importance of commercial law in the world, the General Assembly of the United Nations agreed in December 2002 to increase the membership of UNCITRAL from 36 to 60 States, representing various geographic regions and the principal economic systems and legal traditions of the world. Members are elected for a six-year term by the General Assembly. Other States and governmental and non-governmental organisations may participate as observers in meetings of the Commission and its working groups, which both operate by consensus. Canada was a member of UNCITRAL from 1989 to 1995, participated actively as an observer from 1995 to the fall of 2000, and was elected to the Commission again in the fall of 2000 for a term commencing in June 2001.

[23] At the 36th session of the Commission in July 2003, in which Canada actively participated, UNCITRAL finalized and adopted the UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects.

[24] In terms of future work, the Commission decided to continue the work undertaken by its Working Groups on: arbitration, electronic commerce, transport, insolvency law, and security interests, and will undertake further work in the area of public procurement. The dates and locations of the Working Group sessions are available on the UNCITRAL website.

[25] Canada is a party to two UN conventions relating to international commercial law: the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958, in force 86/08/10) and the U.N. Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980, in force in Canada 92/05/01). Canada has also enacted domestic legislation implementing UNCITRAL's Model Law on International Commercial Arbitration (1985). Legislation drawing on UNCITRAL's Model Law on Electronic Commerce has been adopted by the federal government and a number of provincial and territorial jurisdictions. This year, relying upon the uniform implementing legislation developed at the ULCC, the Department of Justice expects to continue consultations with the provinces and territories regarding accession to and implementation of the Conventions on the Limitation Period in the International Sale of Goods.

C. UNIDROIT

[26] Although the International Institute for the Unification of Private Law, known as Unidroit, was created in 1926 as an organ of the League of Nations, since 1940 it has been an independent inter-governmental organisation based in Rome. There are 59 member States, including Canada since 1968, the United States, China, Australia, and many States from Latin America, Africa, and Eastern and Western Europe. Unidroit's mandate differs from that of the Hague Conference, as it aims to harmonize and co-ordinate the private law of the member States, rather than their private international law rules. Further information on UNIDROIT may be found at http://www.unidroit.org.

[27] Since its creation, Unidroit has drafted more than seventy studies, model laws and conventions on various private law subjects including the law of sales, international leasing and factoring law, the law of carriage, security interests, franchising and cultural property.

[28] Canada is party to only one of the ten Unidroit conventions, the Convention Providing a Uniform Law on the Form of an International Will (1973) (in force for Canada on 78/09/02 and has been extended to Alberta, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Ontario, Prince Edward Island and Saskatchewan).

[29] Unidroit organized a Congress in Rome from September 27-28, 2002, to celebrate its 75th founding anniversary. The theme of the Congress was the worldwide harmonisation of private law and regional economic integration. The Congress gathered representatives from Member States of Unidroit, from international organisations as well as practitioners and scholars.

[30] Finally, Unidroit has recently begun a project on Transactions on transnational and connected capital markets. This project comprises 5 items: (1) the creation of clear and consistent rules for the taking of securities, especially securities held indirectly through intermediaries in multi-tiered holding patterns and evidenced by book entries in the investor's account, as collateral; (2) the creation of -called "delocalised" transactions; and (5) the examination of the desirability and feasibility of rules for world-wide takeover bids.

[31] As a first step, Unidroit has set up a restricted Study Group of experts and practitioners on Item 1 ( http://www.unidroit.org/english/workprogramme/main.htm#NR1

[32] To date, the Study Group has held 2 meetings.

D. WORLD BANK

[33] The World Bank's role on the private international law scene stems in part from the creation of the International Centre for Settlement of Investment Disputes (ICSID) under the Convention for the Settlement of Investment Disputes between States and Nationals of Other States (1965). Canada is still not a party to this Convention. Foreseeing a future ratification, the ULCC has prepared a uniform act to implement the Convention. Further information on the World Bank and the ICSID Convention can be found at http://www.worldbank.org.

E. REGIONAL ORGANIZATIONS: THE ORGANIZATION OF AMERICAN STATES

[34] The Organisation of American States, with 35 member States, provides an important forum for political, economic, social and cultural cooperation in the region of the Americas. In the legal field, the Inter-American Judicial Committee, composed of eleven jurists who are nationals of Member States, acts as an advisory body to the member States. The Committee recommends the convening of specialised juridical conferences, such as the Inter-American Conference on Private International Law (CIDIP) which meets approximately every four or five years to deal with technical matters and further cooperation in the area of private international law. Further information on the OAS may be found at http://www.oas.org/.

[35] Canada is not yet party to any of the 23 OAS conventions in private international law, and had only observer status for the first four CIDIP meetings. Since becoming a member of the OAS in 1990, however, Canada's interest in exploring ways of enhancing legal cooperation with other OAS countries has increased. Canada did participate officially in the 1994 Fifth Inter-American Conference on Private International Law (CIDIP-V) and in CIDIP-VI which was convened in February 2002, particularly regarding the drafting of a Model Law on Secured Transactions.

F. BILATERAL ACTIVITIES

[36] Canada also negotiates bilateral conventions, which mainly deal with the enforcement of judgments. The first convention of this type was the Canada-UK Convention on the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (1984) which is in force for all provinces and territories except Quebec.

[37] The Canada-France Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters and on Mutual Legal Assistance in Maintenance was signed on June 10, 1996. A uniform act to implement this Convention was adopted by the ULCC in August 1997. Saskatchewan (1998), Ontario (1999) and Manitoba (2001) have adopted legislation to implement this Convention.

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