Current Uniform Acts

Hague Convention Choice of Court Agreement - Quebec Law 2007


Annex 1 - Comparison chart of the provisions of the Convention and Quebec Law

Convention Quebec law
Article 1: Scope Art. 2639, 3148 (4) and final phrases; 3168 (5); 3111, 3077 C.C.Q., 68 C.C.P.
Article 2: Exclusions from scope

(1) Employment and consumers

(5) State – party

(1) Art. 3149, 3168 (5) C.C.Q

(5) Art. 28 of the General Regulation respecting the conditions of contracts of government departments and public bodies, R.R.Q., c. A-6.01, r. 0.02

Article 3: Exclusive choice of court agreements

(a) definition

(b) deemed exclusive

(c) formal requirements

(d) independence of clause

(a) Art. 3148 (5) C.C.Q.

(b) M.F.I. Export Finance Inc. c. Rother International S.A. de C.V. Inc., J.E. 2004-1026 (Sup. Ct.).

(c) Articles 1385, 2640 C.C.Q.; Act to establish a legal framework for information technology, R.S.Q., c. C-1.1.

(d) Art. 1438, 2642, 3111-3113, 3121 C.C.Q.

Article 4: Other definitions Art. 75-83, 307, 3155 par. 1 C.C.Q.
Article 5: Jurisdiction of the chosen court Art. 3148 (4); 3078, 3080, 3111, 3112, 3135, 3137, 3155 (1) C.C.Q.; 34, 68, 73.1 C.C.P.
Article 6: Obligations of a court not chosen:

Obligation to suspend or dismiss proceedings except where:

(a) agreement null and void under law of chosen court

(b) capacity – court seized

(c)public policy exception

(d) exceptional reasons

(e) chosen court decides not to hear case

Art. 3139 and 3148 in final phrases C.C.Q.; GreCon Dimter Inc. v. J R Normand Inc., [2005] SCC 46

(a) Art. 1379, 1386, 1435, 1437 C.C.Q.

(b) Art. 3080, 3083 C.C.Q.

(c) Art. 1437 C.C.Q.

(d) Art. 3136 C.C.Q.

(e) Art. 3136 C.C.Q.

Article 7: Interim measures of protection Art. 3138 and 3140 C.C.Q.
Article 8: Recognition and enforcement Art. 3078, 3131, 3155, 3158, 3168 (5) C.C.Q.
Article 9: Refusal of recognition and enforcement Art. 3083, 3155, 3156, 3157, 3158, 3165 (1) C.C.Q.
Article 10: Preliminary questions Art. 3159, 3165 (1) C.C.Q.
Article11: Damages Art. 3155 (5) C.C.Q.
Article 12: Judicial settlements Art. 2631, 3163 C.C.Q.
Article 13: Documents to be produced Art. 786 C.C.P.
Article 14: Procedure Art. 785 C.C.P.
Article 15: Severability Art. 3159 C.C.Q.
Article 16: Transitional provisions N/A
Article 17: Contracts of insurance and reinsurance Art. 3150 C.C.Q.
Article 18: No legalization Art. 2822 C.C.Q.
Article 19: Declarations limiting jurisdiction N/A
Article 20: Declarations limiting recognition and enforcement N/A
Article 21: Declarations with respect to specific matters Art. 3151, 3165 (1) C.C.Q.
Article 22: Reciprocal declarations on non-exclusive choice of court agreements N/A
Article 23: Uniform interpretation N/A
Article 24: Review of operation of the Convention N/A
Article 25: Non-unified legal systems Art. 3077 C.C.Q.
Article 26: Relationship with other international instruments N/A
Articles 27to 34: Final clauses N/A

FOOTNOTES

[1] Counsel with the Quebec Department of Justice. The author was a member of the Canadian delegation involved in negotiating the Convention, from 1996 to its conclusion in 2005. She would like to thank Andrea Schulz, the then – First Secretary of the Hague Conference on Private International Law and currently Director of the Central Authority for International Child Protection in Germany, Andreas Bucher, Professor at the University of Geneva, Me Jeffrey Talpis, Notary and Professor of Law at the University of Montreal, for their valuable comments respectively on the Convention and on Quebec law, as well as Éphigénie Gagné, a Master’s students in maritime law at the University of Lund in Denmark, and Fannie Roy, Legal Technician, Legal Affairs Directorate, Economic, Innovation and Export Development, International Relations, Tourism, Canadian Intergovernment Relations, for carefully re-reading earlier versions of this document and their research. Finally, the author wishes to thank the University of Sherbrooke and its Faculty of Law for their financial support when the author was an Assistant Professor there. However, the opinions expressed in the document are those of the author alone. The following sources may be consulted: A. Bucher, “La Convention de La Haye sur les accords d'élection de for” (2006), R.S.D.I.E., Vol. 16, No 1, p. 29; A. Schulz, “The Hague Convention of 30 June 2005 on Choice of Court Agreements; Keynote Addresses XVIIth IACL Congress” (2006), E.J.L.R., Vol. 8, Issue 1, p. 77-92 and J. A. Talpis and N. Krnjevic, “The Hague Convention on Choice of Court Agreements of June 30, 2005: The Elephant that gave Birth to a Mouse” (2006), Sw.J.Trade Am., Vol. 13, issue 1, p. 1.

[2] See http://www.hcch.net/index_fr.php?act=conventions.text&cid=98.

[3] Behaviour Communications Inc. v. Virtual Image Productions, J.E. 99-1518 (Ct. Que.).

[4] As provided for in article 2(3), the Convention does not apply to certain subjects listed in paragraphs a) to p) of article 2(2), but this exclusion applies only when one of the subjects referred to in paragraph 2 is an “object” of proceedings. See infra, paras.[35] and [55]. Article 2(5) of the Convention also provides that the mere fact that a State is a party to a dispute does not exclude the dispute from the scope of the Convention. In Quebec, according to article 28 of the General Regulation respecting the conditions of contracts of government departments and public bodies, R.R.Q., v. A-6.01, r. 0.02, “a government department or public body may be a party to an arbitration agreement only after having been generally or specifically authorized to do so by the Minister of Justice”. However, the Regulation makes no particular provision concerning choice of court agreements selecting foreign courts. This omission should probably be rectified.

[5] For this article, there is corresponding protection in the recognition and enforcement of foreign judgments: article 3168, par. 5 C.C.Q. Concerning the scope of article 3149 C.C.Q. for a contract of employment where there is a choice of court clause selecting the courts of Massachusetts, see Rees v. Convergia, J.E. 2005-738 (C.A.), application for leave to appeal to the Supreme Court denied (S.C.C., 2005-10-06), 30973; selecting the Ontario courts, see Yunes v. Garland Canada inc., J.E. 2004-1458 (Sup. Ct.); for a contract of employment where there was an arbitration clause, see Dominion Bridge Corp. v. Knai, [1998] R.J.Q. 321 (C.A.); for a consumer contract including an arbitration clause, see Dell Computer Corporation v. Union des consommateurs et al. (Que.), 2007 SCC 34 (31067).

[6] In L.V.H. Corp. (Las Vegas Hilton) v. Lalonde, J.E. 2003-1118 (Sup. Ct.), appeal dismissed on motion (C.A., 2003-09-08), 500-09-013371-034, Émery J. stated that article 3149 C.C.Q. did not confer exclusive jurisdiction on the Quebec authority. It created an exceptional forum for the benefit of the consumer in his capacity as claimant. This forum was an addition to the other common law courts. There was nothing to prevent the merchant from suing a consumer in a foreign court to the extent that it had jurisdiction, for example because the consumer recognized the jurisdiction of foreign courts by not challenging their jurisdiction and not raising their lack thereof as a preliminary question. In that case, these statements were obiter since Émery J. had to rule on the recognition and enforcement of a foreign decision and held that the confession of judgment was not a consumer contract. It may be asked whether, given a choice of court clause, a consumer or employee could prevent the recognition and enforcement of the foreign judgment obtained even where he or she recognized the jurisdiction of the foreign courts.

[7] In Dell, supra, note 5, the judges were divided as to whether an arbitration clause was sufficient in itself to trigger the application of art.3148,par.2, and accordingly its exceptions, including art.3149 (the judges in the minority: Bastarache, LeBel and Fish JJ.), or not (the judges in the majority Deschamps, McLachlin, Binnie, Abella, Charron and Rothstein JJ.).

[8] Consumer Protection Act, R.S.Q., v. P-40.1.

[9] Section 11.1 of the Consumer Protection Act, S.Q. 2006, v. 56, s. 2, in force on December 14, 2006, reads as follows: “Any stipulation that obliges the consumer to refer a dispute to arbitration, that restricts the consumer's right to go before a court, in particular by prohibiting the consumer from bringing a class action, or that deprives the consumer of the right to be a member of a group bringing a class action is prohibited.

If a dispute arises after a contract has been entered into, the consumer may then agree to refer the dispute to arbitration.”

[10] T. Hartley and M. Dogauchi, Explanatory Report on the 2005 Hague Choice of Court Agreements Convention, HCCH Publications, at http://www.hcch.net/upload/expl37f.pdf, p. 77, para. 302.

[11] Czajka v. Life Investors Insurance Co. of America J.E. 95-765 (Sup. Ct.). In this decision, the Quebec court, which had jurisdiction under article 3150 C.C.Q., stayed proceedings on the ground that the Ontario courts were better able to decide the case as a result of the application of the forum non conveniens doctrine codified in article 3135 C.C.Q.

[12] G. Goldstein and É. Groffier are of the view that article 3150 C.C.Q. imposes jurisdiction, and excludes any choice of court or arbitration clause, disagreeing with H.P. Glenn, J.-G. Castel and J.A. Talpis: G. Goldstein and É. Groffier, Traité de droit international privé, tome II, Règles spécifiques, éd. Yvon Blais, 2003, pp. 667-669, para. 418; H P. Glenn, “Droit international privé”, in Barreau du Québec et Chambre des notaires du Québec, La réforme du Civil Code: priorités et hypothèques, preuve et prescription, publicité des droits, droit international privé, dispositions transitoires, tome 3, Sainte-Foy, P.U.L., 1993, p. 756-757, par. 95; J.-G. Castel and J.A. Talpis, “Le Code civil du Québec. Interprétation des règles du droit international privé”, in Barreau du Québec et Chambre des notaires du Québec, La réforme du Civil Code: priorités et hypothèques, preuve et prescription, publicité des droits, droit international privé, dispositions transitoires, ibid., p. 909, para. 454.

[13] Mega Bloks inc. v. American Home Assurance Company*, J.E. 2006-1876 (Sup. Ct.), appeal filed, 2006-06-22 (C.A.), 500-09-016809-063; motion to dismiss the appeal denied (C.A., 2006-10-02), 500-09-016809-063.

[14] Consumer Protection Act, supra, note 8, s. 5 a).

[15] Act to establish a legal framework for information technology, R.S.Q. v. C-1.1.

[16] According to article 2640 C.C.Q.: “An arbitration agreement shall be evidenced in writing; it is deemed to be evidenced in writing if it is contained in an exchange of communications which attest to its existence or in an exchange of proceedings in which its existence is alleged by one party and is not contested by the other party.”

[17] According to article 2642 C.C.Q.: “An arbitration agreement contained in a contract is considered to be an agreement separate from the other clauses of the contract and the ascertainment by the arbitrators that the contract is null does not entail the nullity of the arbitration agreement”, and article 3121 C.C.Q. provides that “Failing any designation by the parties, an arbitration agreement is governed by the law applicable to the principal contract or, where that law invalidates the agreement, by the law of the country where arbitration takes place”.

[18] Article 22 of the Convention contains an opt-in provision extending the provisions of the Convention governing recognition and enforcement to judgments rendered by a court designated in a non-exclusive choice of court agreement. See supra par. [53].

[19] T. Hartley and M. Dogauchi, supra, note 10, par. 41-42.

[20] G. Goldstein and É. Groffier, Traité de droit international privé, Théorie générale, éd. Yvon Blais, 1998, tome 1, p. 359, par. 147; H P. Glenn, supra, note 12, p. 755, par. 91.

[21] Montréal (Ville de) v. Dinasaurium Production inc., [1999] R.J.Q. 2563 (C.A.).

[22] Companies Act, R.S.Q., v. C-38, ss. 7(3) and 123.34; Canada Business Corporations Act, s. 19 (1).

[23] See, for example: Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., 2007 SCC 20; J.-G. Castel, Droit international privé, Toronto, Butterworths, 1980, p. 697.

[24] G. Goldstein and É. Groffier state that the law governing the validity of the document also governs its nullity; contract law would therefore apply and in support, they refer to this statement by the French authors: supra, note 12. They also note that the Rome Convention on the law governing contractual obligations expressly provides for the application of contract law to the existence and validity of the contract (art. 8). G. Goldstein and É. Groffier, supra, note 12, p. 509. Since the Civil Code of Quebec is based largely on this Convention, we find this reference more conclusive than the use of French law.

[25] G.Saumier, “Les objections à la compétence internationale des tribunaux québécois: nature et procedure” (1998), 58 R. du B. 145.

[26] Comité de révision de la procédure civile, La révision de la procédure civile, Consultation Document, Québec, Government of Québec, February 2000, p.113‑114.

[27] The characterization is made under the legal system of the court seized (art. 3078 C.C.Q.).

[28] HSBC Bank Canada v. Nytschyk, (Sup. Ct., 2002-01-14), SOQUIJ AZ-50110269, B.E. 2002BE-199, settled out of court (C.A., 2003-06-10), No. 500-09-011890-027. There was an asymmetric clause and not an exclusive agreement within the meaning of the Convention. See infra [8] and note 40.

[29] According to article 1379 C.C.Q.: “A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.

Any contract that is not a contract of adhesion is a contract by mutual agreement.”

According to article 1437 C.C.Q.:“An abusive clause in a consumer contract or contract of adhesion is null, or the obligation arising from it may be reduced.

An abusive clause is a clause which is excessively and unreasonably detrimental to the consumer or the adhering party and is therefore not in good faith; in particular, a clause which so departs from the fundamental obligations arising from the rules normally governing the contract that it changes the nature of the contract is an abusive clause.”

[30] According to article 2847 C.C.Q.: “A legal presumption is one that is specially attached by law to certain facts; it exempts the person in whose favour it exists from making any other proof.

A presumption concerning presumed facts is simple and may be rebutted by proof to the contrary; a presumption concerning deemed facts is absolute and irrebuttable.”

[31] Article3080 C.C.Q., which includes the reference, reads as follows: “Where, under the provisions of this Book, the law of a foreign country applies, the law in question is the internal law of that country, but not its rules governing conflict of laws.”

[32] Sony Music Canada inc. v. Kardiak Productions inc., J.E. 97-1395 (C.A.).

[33] Quebec private international law applies indiscriminately to cases involving foreign elements outside Quebec, whether they are connected with Canada or occur outside Canada. See infra par. [37].

[34] Indeed, the action of Kardiak against Kathleen was based both on the recording contract and the management contract. The action brought in Quebec could accordingly have been decided in court only against Kathleen. The application of two contracts, one of which was subject to the jurisdiction of the Ontario courts, the joinder of a solidary defendant who was essentially subject to the Ontario courts, the closer connections between Ontario and the case as a whole, the existence of a full legal remedies in Ontario and the prospect of a partial remedy in Quebec and the lack of particular harm and practical impossibility meant that it was exceptionally appropriate to apply forum non conveniens as codified in article 3135 C.C.Q.

[35] C. Emanuelli, Droit international privé québécois, Montréal, Wilson et Lafleur, 2006, p. 106, note 262: [TRANSLATION] “however, this decision is not conclusive because, inter alia, the parties’ intention to rely on the Quebec courts was not expressly recorded in a clause conferring jurisdiction”.

[36] Article 19 of the Convention could be used to maintain a certain form of forum non conveniens by means of a declaration. However, we do not recommend such a declaration; see supra par. [9].

[37] See for cases where there was no choice of court clause: Quebecor Printing Memphis Inc. v. Regenair inc., [2001] R.J.Q. 966 (C.A.) quoting H.P. Glenn, supra, note 12, p. 743, 754; Centre de coopération internationale en santé et développement (CCISD) v. Aide à l’enfance Canada/Save the Children Canada, J.E. 2006-954(Sup. Ct.); Bérubé v. Burnac Corp./Corp. Burnac, [1994] R.D.J. 347 (Sup. Ct.); 9140-0671 Québec inc. v. Tag Drywall inc., Ct. Que. Beauharnais, No. 760-22-003871-046, November 17, 2004, Judge Robillard; De Grandpré, Chaurette, Lévesque v. Musicalis S.A., J.E. 2003-103 (C.A.).

[38] Prior to 1994, the rules in the Code of Civil Procedure were extended by the judicial decisions to international disputes in the absence of more specific rules. Article 68 C.C.P. states that it applies notwithstanding an agreement to the contrary. The jurisdiction of the Quebec courts could not validly be set aside since this is a public policy provision: Importations Cimel Ltée v. Pier Augé Produits de beauté, [1987] R.J.Q. 2345, pp. 2349-2350 (C.A.). Today, this provision reads as follows: “Subject to the provisions of this Chapter and the provisions of Book X of the Civil Code, and notwithstanding any agreement to the contrary …”. Book X introduced specific private international law rules.

[39] M.F.I. Export Finance Inc. v. Rother International S.A. de C.V. Inc., J.E. 2004-1026 (Sup. Ct.).

[40] The clause read as follows: "18. Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario and the Government of Canada and ROTHER and MFI hereby attorn to the jurisdiction and courts thereof. Any collection action or legal enforcement relating to the collection of Cuban accounts receivable from customers of ROTHER located in Cuba, may at the option of MFI be governed and construed in accordance with the laws of the Republic of Cuba and, for these purposes only, ROTHER hereby attorns to the Cuban jurisdiction and the courts thereof. ROTHER agrees that a decree or judgment of a Canadian judicial body may be enforced against ROTHER in Cuba as if such decree or judgment were given by a Cuban judicial body and any judgment or order of a Cuban judicial body may be enforced against ROTHER in Canada, as if such decree or judgment were given by a Canadian judicial body." In the opinion of the Court, «plaintiff's use of the words "a Canadian judicial body" suggests that it was not plaintiff's intention, in the first sentence of sec.18, to give exclusive jurisdiction to the Ontario Courts. Otherwise, it would have referred to "an Ontario judicial body".… The absence of exclusive Ontario jurisdiction was confirmed when the parties attorned to Cuban jurisdiction for the purposes set out in sec.18, and also to the jurisdiction of the courts of Canada.” M.F.I. Export Finance Inc. v. Rother International S.A. de C.V. Inc., supra, note 39. See also HSBC Bank Canada v. Nytschyk, supra, note 28 and United European Bank and Trust Nassau Ltd. v. Duchesneau, [2006] R.J.Q. 1255 (C.A.).

[41] See article 2847 C.C.Q., supra, note 30.

[42] Thus, in Achilles (USA) v. Plastics Dura Plastics (1977) ltée/Ltd., J.E. 2006-2335 (C.A.), where an arbitration clause had been agreed to, the Court of Appeal stated in par. 26: [TRANSLATION] “At this time of globalization of markets and trans-national contracts concluded remotely by means of a telephone call or even an e-mail, the courts would be wrong to take the respondent’s position and to encourage Quebec companies to close their eyes and not read contracts and then attempt to benefit from this wilful blindness. As my colleague Chamberland J. stated in Robertson Building Systems Ltd. v. Constructions de la Source inc., 2006 QCCA 461, «entrepreneurs in Quebec would benefit from reading the contracts offered to them and fully understanding the implications before signing them or even accepting them tacitly by their repeated conduct.»

[43] 9065-3916 Québec inc. (Pizzeria Stratos Nicolet) v. Société de prêt First Data Canada inc., J.E. 2007-582 (Sup. Ct.); Boutique Tania enr. v. Chase Paymentech Solution, J.E. 2007-367 (Sup. Ct.); DSD International inc. v. DMG Canada inc., J.E. 2006-1101 (Sup. Ct.), par. 50 and 51; 171486 Canada v. Rogers Cantel Inc., [1995] R.D.J. 91 (Sup. Ct.); M.C.L. Communications Inc. v. Unitel Communications Inc., J.E. 96-721 (Sup. Ct.); Sony Music Canada inc. v. Kardiak Productions inc., supra, note 32; S.S.I. v. Adi Corp. of Canada, J.E. 97‑1744 (C.A.); 2617-3138 Québec v. Rogers Cantel inc., J.E. 98-1014 (Sup. Ct.); 2736349 Canada inc. v. Rogers Cantel Inc., J.E. 98-1178 (Sup. Ct.); Babin v. Canadian Satellite Communication inc., Québec Sup. Ct., No. 200-05-014037-001, January 15, 2001, Bouchard J., (SOQUIJ AZ-01026075); HSBC Bank Canada v. Nytschyk, supra, note 28; Société des technologies de l'aluminium du Saguenay ltée v. Cooper Grainger Technical Bearing Sales Ltd., J.E. 2004-1825 (Sup. Ct.).

[44] Behaviour Communications Inc. v. Virtual Image Productions, supra, note 3 (California); Hewlett-Packard France v. Matrox Graphics Inc. (Matrox Graphics Inc. v. STMicroelectronics Inc.)*, J.E. 2007-368 (Sup. Ct.), application for leave to appeal granted (C.A., 2007-04-12), 500-09-017464-074; application for leave to appeal granted (C.A., 2007-04-12), 500-09-017465-071 (Texas); Honeywell international inc. v. Notiplex Sécurité incendie inc., J.E. 2006-1877 (Sup. Ct.); appeal dismissed J.E. 2007-456 (C.A.)(Connecticut)

[45] Lamborghini Canada inc. v. Automobilo Lamborghini S.P.A, [1997] R.J.Q. 58 (C.A.), p. 63.

[46] GreCon Dimter Inc. v. J.R. Normand inc., [2005] 2 S.C.R. 401; Crestar Ltd v. C.N.R.,[1999] R.J.Q. 1191 (Sup. Ct.); application for leave to appeal denied (C.A. 1999-05-20), No. 500-09-008017-998.

[47] J.S. Finance Canada v. J.S. Holding, J.E. 99‑1067 (C.A.).

[48] Camionex inc. v. Bombardier inc.,J.E. 99‑1378 (C.A.).

[49] United European Bank and Trust Nassau Ltd. v. Duchesneau, supra, note 40.

[50] Classé Audio inc. v. Linn Products Ltd., J.E. 2006-516 (Sup. Ct.), application for leave to appeal denied (C.A., 2006-03-23), 500-09-016428-062. The invoice accompanying the delivery of the equipment had a choice of court clause on the reverse side selecting the laws and courts of Scotland. The applicant challenged the jurisdiction of the Quebec courts to hear the case. The trial judge denied the application on the ground that the choice of court clause was not imperative and did not confer exclusive jurisdiction on the foreign court. He found that the clause had not been discussed by the parties, no evidence of acceptance had been produced and the respondent was not aware of its existence.

[51] According to the Explanatory Report, here again, as in article 5(1), the “law” includes the conflict of laws rules of this State, T. Hartley and M. Dogauchi, supra, note 10, par. 149, note 184. Moreover, capacity may also be decided by the law of the chosen court under article 6 a) of the Convention: ibid. and para. 150.

[52] According to the Explanatory Report on the Convention, the phrase “manifest injustice” covers exceptional situations where one of the parties could not obtain a fair trial in the foreign State, perhaps of bias or corruption, or where there were other reasons specific to that party that would preclude him or her from bringing or defending proceedings in the chosen court. It might also relate to the particular circumstances in which the agreement was concluded – for example, if it was the result of fraud. The standard is intended to be high: the provision does not allow a court to disregard a choice of court agreement simply because it would not be binding under domestic law. T. Hartley and M. Dogauchi, supra, note 10, par. 152.

[53] According to the Explanatory Report on the Convention, the phrase “manifestly contrary to the public policy of the court seized” is intended to set a high threshold. It refers to basic norms or principles of that State; it does not allow the court seized to hear the case simply because the chosen court might violate, in some technical way, a mandatory rule of the State of the court seized. A State may not declare all agreements involving unequal bargaining powers to be invalid. T. Hartley and M. Dogauchi, supra, note 10, par. 153.

[54] The Explanatory Report on the Convention states that the court seized but not chosen will apply its own law rather than using the rules of the chosen court, as article 6 a) of the Convention seems to provide. According to the Report: “A choice of court agreement cannot be established unilaterally: there must be agreement. Whether there is consent is normally decided by the law of the State of the chosen court, including its rules of choice of law, though in some circumstances capacity is also determined by other systems of law. … However, the Convention as a whole comes into operation only if there is a choice of court agreement, and this assumes that the basic factual requirements of consent exist. If, by any normal standards, these do not exist, a court would be entitled to assume that the Convention is not applicable, without having to consider foreign law.” (notes omitted). T. Hartley and M. Dogauchi, supra, note 10, par. 94 and 95.

[55] Hewlett-Packard France v. Matrox Graphics Inc., supra, note 44.

[56] In Hewlett-Packard France v. Matrox Graphics Inc., supra, note 44, Société des technologies de l'aluminium du Saguenay ltée v. Cooper Grainger Technical Bearing Sales Ltd., supra, note 43 and in Classé Audio inc. v. Linn Products Ltd., supra, note 50, the question of a contract of adhesion was not raised.

[57] According to the first paragraph of article 1379C.C.Q.:“A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.”

[58] According to article 1435 C.C.Q., “An external clause referred to in a contract is binding on the parties.

In a consumer contract or a contract of adhesion, however, an external clause is null if, at the time of formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it.”

[59] Article 1437 C.C.Q., supra, note 29.

[60] Concerning the general validity of external, illegible, incomprehensible or abusive clauses, G. Goldstein and É. Groffier suggest the possibility of bringing public policy into play exception or considering that they are necessary rules of application, supra, note 12, p. 508, para. 368. They add that they are of the view that a Quebec court chosen despite a clause conferring jurisdiction on a foreign court may hear a case concerning the validity of this clause. This could not be refused on the ground that it was a decision on the merits, any more than it would be prohibited from deciding whether a case fell outside the ambit of the clause: ibid., p. 545, para. 377.

[61] In Achilles (USA) v. Plastics Dura Plastics (1977) ltée/Ltd., supra, note 42, the Court of Appeal noted that acceptance of the terms of a contract, including acceptance of the arbitration clause, may result from the conduct of the parties, thus ignoring a comment by the Superior Court in Classé Audio inc. v. Linn Product Ltd., supra, note 50 (application for leave to appeal denied) that concerning article 3148 C.C.Q., “It can be argued that the word "chosen" (in French, “choisi”) precludes the possibility of tacit agreement and implies that the parties must deliberately and consciously choose the agreed upon forum.”

[62] DSD International inc. v. DMG Canada inc., supra, note 43 refers to United European Bank and Trust Nassau Ltd. v. Duchesneau, supra, note 40.

[63] Ibid.

[64] DSD International inc. v. DMG Canada inc., supra referred to at note 43, refers to Société des technologies de l'aluminium du Saguenay ltée v. Cooper Grainger Technical Bearing Sales Ltd., supra, note 43 and to Classé Audio inc. v. Linn Products Ltd., supra, note 50. See concerning arbitration Eclipse Optical Inc. v. Bada U.S.A. Inc., [1998] R.J.Q. 289 (Ct. Que.), where the parties did not feel bound by an arbitration clause appearing on the back of the invoices paid regularly by the plaintiff.

[65] 2617-3138 Québec inc. v. Rogers Cantel inc., supra, note 43. See also 9065-3916 Québec inc. (Pizzeria Stratos Nicolet) v. Société de prêt First Data Canada inc. and 2736349 Canada inc. v. Rogers Cantel inc., supra, note 43. In all these cases, the chosen courts were those of Ontario and its law also applied. In GreCon, the Supreme Court did not mention a contract of adhesion among the limits to the freedom of choice expressed by the choice of court agreement: GreCon Dimter inc. v. J.R. Normand inc., supra, note 46.

[66] United European Bank and Trust Nassau Ltd. v. Duchesneau, supra, note 40, para. 49, and paras. 75 to 78.

[67] See article 3080 C.C.Q., supra note 31.

[68] Article 3136 C.C.Q. reads as follows: “Even though a Quebec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Quebec, where proceedings cannot possibly be instituted outside Quebec or where the institution of such proceedings outside Quebec cannot reasonably be required.”

[69] Thériault v. Gauvreau, [1996] R.J.Q. 2328 (Sup. Ct.); E.B. v. B.K., [2003] R.D.F. 997 (res.) (Sup. Ct.), J.E. 2003-1645 (Sup. Ct.); Conserviera S.P.A. v. Paesana Import-Export Inc., [2001] R.J.Q. 1458 (C.A.); M.C.L. Communications inc. v. Unitel Communications inc., J.E. 96-721 (Sup. Ct.); Droit de la famille – 2267, [1995] R.D.F. 646 (Sup. Ct.); L.F. v. N.T., [2001] R.J.Q. 300 (C.A.); H.H.N. v. O.X.Ng., [2002] R.D.F. 604 (Sup. Ct.); appeal discontinued (C.A., 2003-02-28) No. 500-09-012421-020; Souffrant v. Haytian American Sugar Company, J.E. 2007-371 (Sup. Ct.).

[70] Lamborghini (Canada) inc. v. Automobili Lamborghini S.P.A. and 2736349 Canada Inc. v. Rogers Cantel Inc., supra, note 43.

[71] Article 3140 C.C.Q., for its part, provides that all necessary measures may be taken to protect a person located in Quebec or his or her property located there in cases of emergency or serious inconvenience. This provision is often applied in conjunction with article 3138 C.C.Q. See O.A.K.N. (Dans la situation d'), J.E. 2004-1025 (C.Q.).

[72] However, these measures may be recognized and enforced in another State only if the law of the requested State provides for this, which is not the case in the Quebec law governing foreign provisional or conservatory measures since these are, by definition, final and a condition for recognition and enforcement under article 3155 (para. 2) C.C.Q.

[73] Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., supra, note 23 (injunction). Note that Transat had not appealed from the part of the judgment of the Superior Court dismissing its application for a safeguard order. The opinion of the Court of Appeal concerned a final injunction; however, the same reasoning should apply if only an interim injunction were requested. Seecontra Martin v. Espinhal, J.E. 2001-1193 (Ct. Que.) (seizure).

[74] GreCon Dimter inc. v. J.R. Normand inc., supra, note 46.

[75] Robertson Building Systems Ltd. v. Constructions de la Source inc. et Achilles (USA) v. Plastics Dura Plastics (1977) ltée/Ltd., supra, note 42.

[76] T. Hartley and M. Dogauchi, supra, note 10, par. 41-42.

[77] Quoted in Dell, supra, note 5: J.A. Talpis “Choice of Law and Court Selection Clauses under the New Civil Code of Quebec” (1994), 96 R. du N. 183, p.218; S.Rochette, “Commentaire sur la décision United European Bank and Trust Nassau Ltd. v. Duchesneau — Le tribunal québécois doit‑il examiner le caractère abusif d’une clause d’élection de for incluse dans un contract d’adhésion?” Droit civil en ligne, Repères, Bulletin de droit civil, EYB 2006‑104816, P.3‑4; S.Guillemard, “Liberté contractuelle et rattachement juridictionnel: le droit québécois face aux droits français et européen”, E.J.C.L., Vol.8, June 2, 2004, pp.25, 26, 28 and 50.

[78] Article 3111 reads as follows: “A juridical act, whether or not it contains any foreign element, is governed by the law expressly designated in the act or the designation of which may be inferred with certainty from the terms of the act.

A juridical act containing no foreign element remains, nevertheless, subject to the mandatory provisions of the law of the country that would apply if none were designated.

The law of a country may be expressly designated as applicable to the whole or a part only of a juridical act.”

[79] S.Guillemard, supra, note 77, pp.25, 26, 28 and 50.

[80] Today, this article 68 C.C.P. reads as follows: “Subject to the provisions of this Chapter and the provisions of Book X of the Civil Code, and notwithstanding any agreement to the contrary …”

[81] T. Hartley and M. Dogauchi, supra, note 10, par 171.

[82] Ginsbow inc. v. Pipe and Piling supplies LTD, J.E. 2000-762, appeal dismissed J.E. 2002-53.

[83] Section 6 par. 1 of the Act respecting the implementation of the reform of the Civil Code, S.Q., 1992, v. 57.

[84] When it applies, the Convention does not require recognition and enforcement by the court requested, although it does not prohibit this.

[85] See Society of Lloyd's v. Alper*, J.E. 2006-717 (C.S.), appeal filed, 2006-03-30 (C.A.), No. 500-09-016543-068; application for leave to appeal dismissed (C.A., 2006-07-04), No. 500-09-016543-068and DirecTV inc. v. Scullion, [2002] R.J.Q. 2086 (Sup. Ct.); appeal dismissed on motion, (C.A. 2002-11-07), No. 500-09-012621-025.

[86] Beals v. Saldanha, [2003] 3 S.C.R. 416.

[87] Cortas Canning and Refrigerating Co. v. Suidan Bros. Inc./Suidan Frères inc., [1999] R.J.Q. 1227 (Sup. Ct.), appeal abandoned (C.A., 1999-09-09), No. 500-09-007981-996. The amount of the damages converted into Canadian dollars was $12,994,200.00. In the view of the Court, “This amount is so disproportionate with amounts awarded in similar situations in Canada and in Quebec that it could be said to be in non-conformity with public order as understood in the international context”. In that case, recognition and enforcement were refused primarily on the ground that the foreign court that decided the case did not have jurisdiction. See, concerning the public policy exception for recognition and enforcement of foreign judgments: Auerbach v. Resorts International Hotel Inc., [1992] R.J.Q. 302 (C.A.); application for leave to appeal to the Supreme Court denied (S.C.C., 1997-06-26) 25785 (gambling debt); Mutual Trust Co. v. St-Cyr, [1996] R.D.J. 623 (C.A.) (immovable hypothec; division in payment); Droit de la famille-3687, [2000] R.D.F. 505 (C.S.) (alimony, in loco parentis); Droit de la famille-2054, J.E. 98-1237 (C.A.), application for leave to appeal to the Supreme Court denied (S.C.C., 1999-01-21), 26790, (foreign divorce).

[88] Cortas Canning and Refrigerating Co. v. Suidan Bros. Inc./Suidan Frères inc., supra, note 87.

[89] According to article 3163 C.C.Q.: “A transaction enforceable in the place of origin is enforceable and, as the case may be, declared to be enforceable in Quebec on the same conditions as a judicial decision, to the extent that these conditions apply to the transaction.”

[90] The formality of the Apostille of the Hague Convention on legalization is not known in Quebec law since Quebec has not implemented it and Canada is not a party to it.

[91] T. Hartley and M. Dogauchi, supra, note 10, paras. 160, 179 to 182.

[92] Worthington Corp. v. Atlas Turner inc., [2004] R.J.Q. 2376 (C.A.), application for leave to appeal to the Supreme Court denied (S.C.C., 2005-03-17), 30581.

[93] Keane v. Imbeau, [1987] R.D.J. 468 (C.A.); Droit de la famille-1149, [1988] R.D.F. 83 (Prov. Ct.); Nadeau v. Société québécoise d’assainissement des eaux, J.E. 2001-1798 (C.A.); Burton v. Verdun (Ville de), J.E. 98-1950 (C.A.); Liberty Mutual Insurance Co. v. Commission des normes du travail du Québec, [1990] R.D.J. 421 (C.A.); E.D.D. v. I.P., [1988] R.D.J. 592 (C.A.); Canada 3000 Airlines Ltd. v. Aéroports de Montréal, REJB 199-10640 (Sup. Ct.); Église apostolique de Dieu de la Pentecôte de Montréal v. Waschik (Succession de), J.E. 99-44 (Sup. Ct.); 124298 Canada inc. (Syndic de), (Sup. Ct.), Montreal, No. 500-11-001412-952, 1997-10-27, Rayle J., AZ-98026001; B.E. 98BE7(Sup. Ct.); Caisse populaire Les Chutes v. Trust général du Canada, (Sup. Ct.), Trois-Rivières, No. 400-05-001515-973, 1997-11-27, Blondin J., AZ-98026109; B.E. 98BE216 (Sup. Ct.) referred to by D. Ferland and B. Émery, Précis de procédure civile, 4e éd., tome 1, Cowansville, éd. Yvon Blais, 2003, p. 284, notes 43 and 44.

[94] Society of Lloyd's v. Alper, supra, note 85.

[95] Act to secure the carrying out of the Entente between France and Quebec respecting mutual aid in judicial matters, R.S., v. A-20.1.

[96] See, concerning article 19 of the Convention, supra, note 36.

[97] Article 23of the Convention provides in this respect that, for the interpretation of this Convention, regard shall be had to its international character and to the need to promote uniformity in its application. As for article 24, it provides that the Secretary General of the Hague Conference on Private International Law shall at regular intervals make arrangements for review of the operation of the Convention, including any declaration and consideration of whether any amendments to the Convention are desirable.

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