Activities and Priorities Of The Dept. of Justice In Private International Law 2000



II. INTERNATIONAL ORGANIZATIONS


A. THE HAGUE ConfErence ON PRIVATE INTERNATIONAL LAW

The Hague Conference on Private International Law, which held its first session in 1893, has 47 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 four years, at the end of which the Sessions of the Conference are convened and which all member States attend. 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 35 conventions, 26 of which are in effect. Further information on The Hague Conference on Private International Law may be found at <http://www.hcch.net>.

The 1997-2000 work programme focused on the drawing up of two conventions, one dealing with the enforcement of judgements and the other on the protection of adults. This latter Convention was completed in October 1999. The 2001-2004 work programme will not be adopted until June 2001 but we anticipate that it will include continued work on jurisdiction and enforcement of judgements, a new convention on maintenance obligations and possibly a convention on the subject of on-line dispute resolution.

Canada participated in the following activities of the Conference: the Special Commission of May 2000 on general affairs and policy of the Conference and the Special Commission on the question of the recognition and enforcement of foreign judgements in civil and commercial matters in October 1999. A Canadian, Mr. T.B. Smith, chaired the latter. In February 2000, Canada hosted a meeting of the Hague Conference to discuss questions of jurisdiction and electronic commerce in the context of the draft Convention on jurisdiction, recognition and enforcement of foreign judgements.

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).

B. UNCITRAL

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 6 conventions, 6 model laws, uniform rules and a number of legal guides. Further information on UNCITRAL may be found at <http://www.uncitral.org>.

The membership of UNCITRAL is currently limited to 36 States, representing various geographic regions and the principal economic systems and legal traditions of the world. The 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, and since then has participated actively as an observer. During Spring 2000, Canada announced its candidacy for a seat on the Commission, with elections to take place in the fall of 2000 for a term commencing in June 2001.

At the 33d session of the Commission in June and July 2000, in which Canada actively participated, UNCITRAL instructed the Working Group on Electronic Commerce to continue developing uniform rules for digital signatures and related issues and to complete its work at the fall 2000 session of the Working Group. The Working Group on International Contract Practices presented a draft Convention on Assignments of Receivables to the Commission, which will complete its review of the draft at its 34th session in 2001. The Commission finalised the draft Legislative Guide to Privately-Financed Infrastructure Projects which will be published and distributed by the United Nations.

In terms of future work, the Commission will continue its work in the area of arbitration and will undertake new work in insolvency law. The Working Group on Electronic Commerce will prepare recommendations on future work for the 34th session of the Commission. As a result, the Working Group on International Contract Practices will meet in Vienna from December 11-22, 2000, the Working Group on Insolvency Law will meet in New York from March 26 to April 6, 2001 and the Working Group on Arbitration will meet in Vienna from November 20 to December 1, 2000 and in New York from May 21 to June 1, 2001. The Working Group on Electronic Commerce will meet in Vienna from September 18-29, 2000 and in New York from February 26 to March 9, 2001. The 34th session of the Commission will take place in Vienna from June 25 to July 13, 2001.

Canada is a party to two UN conventions relating to international commercial law: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958, in force 86/08/10) and the 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. This year, relying upon the uniform implementing legislation developed at the ULCC, the Department of Justice expects to undertake consultations with the provinces and territories regarding the accession to and implementation of the Conventions on the Limitation Period in the International Sale of Goods.

C. Unidroit

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 58 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 harmonise 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>.

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.

Canada is party to only one of the six 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 was extended to Alberta, Manitoba, New Brunswick, Newfoundland, Ontario, Prince Edward Island and Saskatchewan).

D. WORLD BANK

The World Bank has also been active on the private international law scene since 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. However, at the suggestion of the Department of Justice, a Working Group of the ULCC drafted a uniform act to implement the Convention adopted by the ULCC on November 30, 1997, foreseeing a future ratification. Further information on the World Bank can be found at <http://www.worldbank.org>.

E. REGIONAL Organizations: THE ORGANIZATION OF AMERICAN STATES

The Organisation of American States, with 34 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/>.

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 is closely following preparations for CIDIP-VI, which we expect will take place within the next two years. The Conference will deal mainly with commercial law issues. Consultations could be undertaken in the coming years regarding the possibility of ratifying and implementing the Inter-American Convention on the Law Applicable to International Contracts (1994) and the Inter-American Convention on International Traffic in Minors (1994).

F. bilateral ACTIVITIES

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

The Canada-France Convention on the Recognition and Enforcement of Judgements in Civil and Commercial Matters and on Mutual Legal Assistance in Maintenance was signed on June 10, 1996. Consultation with the provinces regarding its implementation is well advanced. A uniform act to implement this Convention was adopted by the ULCC in August 1997. Saskatchewan (1998) and Ontario (1999) have adopted legislation to implement this Convention.

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