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

B. JUDICIAL COOPERATION AND ENFORCEMENT OF JUDGMENTS

1. HIGH PRIORITIES

a. Judgments Project - Draft Text On Choice Of Court Agreements (Hague Conference on Private International Law)

[139] - Subject: This project was part of the 1997-2000 work programme of the Hague Conference and it will continue as part of the 2001-2004 programme. The project aims at a multilateral convention with rules on acceptable and prohibited bases of court jurisdiction in international litigation, and corresponding rules for the recognition and enforcement of judgments in civil and commercial matters.

[140] Formal negotiations ended in June 2001 with a new draft text on which there was little consensus. Member States decided in April 2002 that a small group of experts reflecting the make-up of the Conference should meet informally to examine the possibility of preparing a more limited text that would avoid the most contentious issues and would resolve other issues.

[141] In 2002, the Permanent Bureau of the Hague Conference established an Informal Working Group to attempt to prepare a new draft convention, in accordance with the mandate given to it at the April 2002 meeting of Member States. The Working Group met 3 times, in October 2002, January 2003 and March 2003. Kathryn Sabo participated in the meetings. At the end of the March session, the Working Group submitted a draft text that recognizes exclusive choice of forum clauses in business-to-business contracts and provides for recognition and enforcement of judgments based on choice of court clauses.

[142] The Report on the Work of the Informal Working Group on the Judgments Project (Prel. Doc. No 22) dated June 2003, details the discussions of the March meeting and sets out the draft text. It should be noted that although the draft provides for only one ground of jurisdiction, an exclusive choice of court clause in a business-to-business contract, its rules on recognition are broader to the extent they allow a judgment to be recognized if it were based on a choice of court agreement, even if the agreement was not exclusive.

[143] Overall, the text is much narrower than the 1999 or the 2001 draft, but it is technically more complete and simpler. While it does avoid many of the most contentious issues those drafts contained, it still presents some issues. For example, it provides that a State may opt to refuse to recognize certain exclusive choice of court agreements. Additionally, while the rules are intended to apply only to business to business contracts, the latter are not clearly defined; the approach adopted is rather to state the types of contracts that are not covered.

[144] The draft was submitted to a Special Commission on General Affairs and Policy of the Commission in April 2003. The Special Commission concluded that Member States should inform the Secretary General before the end of July whether the draft should be the basis for a Special Commission that would be convened in December to prepare a completed draft for a diplomatic session that would be held in 2004.

[145] The Department of Justice's Advisory Group on Private International Law at its June 2003 meeting was of the view that the project should proceed to a Special Commission. This view was communicated to the Secretary General of the Hague Conference. Canada has been advised that all the responses received by the Secretary General were in favour of a Special Commission, including the response from the European Commission on behalf of EU States. We anticipate receiving formal notice of the December Special Commission very shortly.

[146] Action required in Canada: Undertake broad consultation on the draft in preparation for the Special Commission; work with delegation to prepare Canada's position.

b. Convention on Service Abroad (Hague Conference)

[147] - Subject: This Convention has been in force all across Canada since 1989 and in Nunavut since April 1st, 1999. It applies also in 39 other States. It is aimed at facilitating the service of documents through Central Authorities established in each State party. Other means of service, such as postal service, are also available provided no objection to their use has been made.

[148] In Canada, Central Authorities have been designated in each province and territory. At the federal level, the Legal Advisory Division of the Department of Foreign Affairs and International Trade serves as the Central Authority and is monitoring the application of the Convention with the input of provincial and territorial Central Authorities. The rules of practice in all provinces and in two territories, as well as at the federal level, have been amended to comply with the Convention.

[149] In 1999, the Permanent Bureau of the Hague Conference on Private International Law began the preparation of a new edition of the Practical Handbook on the Operation of the Hague Convention. All Canadian jurisdictions were contacted to update the practical information provided in the Handbook. This information has been provided to the Permanent Bureau of the Hague Conference. The new edition will be available for the Special Commission.

[150] Following a request for information by the Slovak Republic concerning the methods of payment of the 50 dollar fee requested for the service of foreign documents in Canada, in the provinces and in the territories, the PIL Team prepared and sent a questionnaire to all federal, provincial and territorial authorities concerned to determine the methods of payment accepted in their jurisdictions. Answers have been received, compiled and sent back for comments. Research is underway on possibility of recommending several universal modes of payment accepted in all jurisdictions. The Hague Convention will hold a special commission on this convention in October 2003.

[151] - Action required in Canada: Monitor its application; provide information; constitute delegation for Special Commission

c. Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Hague Conference)

[152] Subject: This Convention, which does not yet apply to Canada, is in force in 77 States. It is aimed at replacing the process of legalisation of documents by diplomatic officials with the simpler method of the "apostille", i.e., a certificate issued in the originating country by a competent authority. At the request of the Secretary General of the Hague Conference, the Advisory Group recommended that consultation on the suitability of Canada becoming a party to this Convention, which was suspended in 1993, be reinitiated given the anticipated benefits for private parties particularly under the Intercountry Adoption Convention. The operation of this Convention and its information technology implications will be considered at the October Special Commission.

[153] Discussions have begun with the provinces and territories through the Advisory Group on Private International Law, and information is being prepared about the convention and its implementation in Canada.

[154] In order to understand the nature and the volume of needs, the Department of Foreign Affairs and International Trade was asked, in 1999 and then in November 2002, to provide us with statistics concerning the number of legalizations made every year through its services.

[155] Discussions were also begun in May, 2003, with the Canadian Bar Association in order to distribute to the CBA's members a questionnaire from the PIL Team on the advantages and disadvantages of the present legalization system. The answers to the questionnaire should form the basis of a campaign for the sensitization of the Legal profession and the federal and provincial/territorial authorities for the ratification and implementation of the Convention by Canada and all provinces and territories.

[156] A slightly modified questionnaire has been prepared for the provinces and territories for the same purpose.

[157] In March and May 2003, complaints were made by some members of the public to the PIL Team about false advertising on some internet web sites of « diploma mills » concerning the international value of the apostille. Discussions were held with the Bureau of The Hague Conference on that topic, which will be discussed further during the next Special Commission.

[158] - Action required in Canada: Prepare an information note to send to the provinces and territories on the advantages of the Convention and its implementation in other countries, including any costs associated with it.

d. Convention on the Taking of Evidence Abroad (Hague Conference)

[159] - Subject: This Convention, which does not yet apply in Canada, is in force in 40 States. Its purpose is to facilitate the transmission and enforcement of letters rogatory by which foreign authorities are requested to obtain evidence for use in ongoing proceedings. This Convention is a complement to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, which is already in force in Canada.

[160] Consultation on the desirability of Canada's acceding to the Convention was undertaken in 1990. So far, the implementation of this Convention has received the support of six jurisdictions. As this Convention does not contain a federal state clause, it will be necessary to receive the support of all jurisdictions before accession is possible. Although the Convention would not be costly to implement in Canada, from a policy perspective the advantages of Canada's accession may not be obvious. The Canadian Bar Association has therefore been requested to seek input from practitioners on the problems they face when attempting to obtain evidence abroad. The prospect of a multilateral convention on judgments may also add some impetus to the need to consider acceding to the Convention once the Hague project on jurisdiction and foreign judgments is completed. *

[161] Discussions were also begun in May, 2003, with the Canadian Bar Association in order to distribute to the CBA's members a questionnaire from the PIL Team on the advantages and disadvantages of the present for the taking of evidence abroad system. The answers to the questionnaire should form the basis of a campaign for the sensitization of the Legal profession and the federal and provincial/territorial authorities for the ratification and implementation of the Convention by Canada and all provinces and territories.

[162] A slightly modified questionnaire has been prepared for the provinces and territories for the same purpose.

[163] - Action required in Canada: Consultation on the appropriateness of Canada's acceding to it; implementation by way of amendments to Rules of Courts.

2. LOW PRIORITIES

a. Canada/United Kingdom Convention on Recognition and Enforcement of Judgments (Bilateral)

[164] - Subject: This Convention, which was concluded in 1984, was the first bilateral treaty entered into by Canada in the area of enforcement of judgments. It now applies to all Canadian jurisdictions except Quebec and Nunavut. However, as legislation to implement the Convention in Nunavut has been adopted, the application of the Convention could be extended to Nunavut in the near future by way of Declaration. The Convention was modified in February 1995 by the incorporation of a reference to the 1988 Lugano Convention on Judicial Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, in order to protect Canadian interests against enforcement in the United Kingdom of judgments rendered in European countries party to the Lugano Convention on exorbitant bases of jurisdiction. The necessary implementation measures were adopted in the United Kingdom and the amendments came into force on December 1, 1995. The modification is in addition to the protection with respect to judgments from countries party to the 1968 Brussels Convention already included in the text. The Hague Conference anticipates holding a Special Commission to examine the operation of this Convention and its information technology implications in 2003.

[165] The 1984 Convention is used from time to time by parties in order to obtain from the courts of one of the State-parties the recognition of the judgments obtained from the courts of another. However, the Convention does not apply to a certain number of areas of the law, like judgments in family matters, in which case the Hague convention on the abduction of children provides a more appropriate legal framework by imposing the use of national central Authorities.

[166] - Action required in Canada: Monitoring its application; extension to Quebec when possible.

b. Canada-France Convention on Recognition and Enforcement of Judgments (bilateral)

[167] - Subject: The Canada-France Convention, the first treaty relating to enforcement of judgments negotiated between Canada and a country with a civil law tradition, was signed on June 10, 1996. It will come into force once domestic law measures to give effect to the Convention will have been taken. Its main advantage, similar to that under the Canada-United Kingdom Convention, is protecting Canadian interests against the enforcement of judgments rendered in European States parties to the Brussels and the Lugano Conventions on the basis of exorbitant jurisdiction. In addition, the Canada-France Convention will allow for the simplified enforcement of Canadian judgments in France, not only in general civil and commercial matters, but also in family matters, including maintenance orders.

[168] Since the Brussels II convention, of January 2000, France has transferred to the European Union an important part of its jurisdiction over the administration of justice, especially concerning the recognition and enforcement of foreign judgments. But the effects of this transfer of jurisdictions are not yet known with certainty. On the one hand, the legislative, regulatory and administrative measures necessary to effect the transfer are not yet decided with certainty. On the other hand, the effects of the jurisdictional transfer with regard to countries that are not members of the European Union should be null, but it is still necessary to discuss with the Union and its members the practical consequences for third countries, like Canada.

[169] The ULCC adopted a uniform law to implement the Convention in August 1997. Relevant documents were sent to the provinces and territories. In June 1998, Saskatchewan became the first jurisdiction to enact legislation based on the Uniform Act. In December 1999 and August 2000 respectively, Ontario and Manitoba enacted legislation to implement the Convention also based on the Uniform Act. To the extent necessary, a federal implementing law will be prepared. Some of the implementation measures deal with family law matters, for example the recovery of alimony. A draft standard administrative agreement is presently being prepared by the concerned authorities.

[170] - Action required in Canada: Consultation regarding timely implementation of the Convention; notification to France of the adoption of required measures.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018