Federal Report on Private International Law 1996

REGIONAL ORGANIZATIONS

Organization of American States

The General Assembly of the OAS decided at its June 1996 meeting that a Sixth Fifth Inter-American Specialized Conference on Private International Law (CIDIP-VI) be held at such a time and location to be determined later. It also approved a tentative agenda on which the views of member States will be further sought after preliminary studies. Canada participated for the first time as a member of the OAS in the CIDIP-V which was held in Mexico City in March 1994.

Consultations have yet to be initiated in Canada with respect to two Conventions, one in commercial law and the other in family law, which were finalized at the time of CIDIP V. The first Convention is the Inter-American Convention on the Law Applicable to International Contracts. This Convention provides for the recognition of the choice of the law applicable to an international contract by the parties to such contract. This rule is in general conformity with existing rules in both common law and civil law regimes in Canada. The Convention also establishes subsidiary rules for the determination of the law applicable. Venezuela has ratified this Convention in February 1996; two ratifications are necessary before the Convention comes into force.

The other convention is the Inter-American Convention on International Traffic in Minors (Criminal and Civil Aspects), which covers a broad range of issues related to child sale, prostitution, exploitation, etc. The Convention is aimed at preventing and punishing illegal acts and sets principles for national action and measures as well as international cooperation. It seeks to facilitate the return of child victims of traffic as well as to provide for civil remedies.

BILATERAL CONVENTIONS ON MUTUAL LEGAL ASSISTANCE

Canada-United Kingdom

The Convention between Canada and the United Kingdom on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, concluded in 1984, has now been implemented at the federal level and in all the provinces and territories, except Quebec. In February, 1995, Canada and the United Kingdom completed an Exchange of Diplomatic Notes modifying the Convention.

The changes are aimed at incorporating a reference to the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, with a view to preventing the enforcement of European judgments based on exorbitant grounds of jurisdiction against the interests of Canadian defendants. Since the Canada-United Kingdom Convention already provides for such a clause regarding the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, these modifications are limited in scope and only affect the law in the United Kingdom.

The necessary implementing measures have been adopted in the United Kingdom and the amendments have come into force on December 1, 1995.

Canada-France

Canada and France successfully completed the negotiations concerning the recognition and enforcement of judgments in civil and commercial matters. Following up the first round of negotiations held in Paris in July 1994, two meetings took place in the first part of 1996: the second round of negotiations was held in Ottawa in March and the third and final round was held in Paris on May 13-14, 1996. The provinces and territories were consulted extensively in preparation for these rounds of negotiations.
The final text of the Convention between Canada and France on the Recognition and Enforcement of Judgments in Civil and Commercial Matters and on Mutual Legal Assistance in Maintenance was signed in Ottawa on June 10, 1996, at the time of the visit of the Prime Minister of France to Canada.

The main advantage provided by the new Canada-France Convention is similar to that under the Canada-United Kingdom Convention, namely to protect 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 easy enforcement of Canadian judgments in France not only in general civil and commercial matters but also in family matters, including maintenance orders.

The Canada-France Convention is the first treaty on legal assistance with a civil law country. The question of its timely implementation was discussed at the spring 1996 meeting of the Advisory Group. It was recommended that the Uniform Law Conference be asked to embark on the drafting of an implementing uniform act. This task could be considered as part of the project on the enforcement of foreign judgments to be reviewed by the Conference at its August 1996 meeting.
An explanatory report of the Convention to be drafted by the Ontario members of the Canadian delegation to the negotiations will be distributed in all jurisdictions as soon as it is available.

Canada-Egypt

An exploratory mission composed of officials of the Department of Foreign Affairs and International Trade and one federal Justice representative travelled to Cairo, Egypt, from March 18 to 22, 1996. The purpose of the trip was to meet with Egyptian officials to discuss issues of child abduction and personal status matters in the aftermath of the visit of the Canadian Minister of Foreign Affairs in November 1995. The meetings were successful and it was agreed that Canada would draft an agreement on consular matters to be later submitted to Egypt for comments.

The proposed agreement would help resolve issues related to personal status matters involving nationals of either country by the establishment of a joint consultative commission. The report of the Canadian mission as well as the text of the proposed agreement were sent to all jurisdictions for information; they were also invited to submit any comments or questions as the case may be. The process is still ongoing. It is expected that the agreement will be finalized in the fall of 1996.

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