Activities and Priorities Dept. Justice Private International Law 2007



a. Convention on Choice of Court Agreements (Hague Conference)

[146] On June 30, 2005, the Hague Conference on Private International Law closed its 20th Diplomatic Session and completed its work on the Convention on Choice of Court Agreements. The final instrument sets rules for when a court must take jurisdiction or refuse to do so where commercial parties have entered into an exclusive choice of court agreement. The Convention also provides for the recognition and enforcement of resulting judgments, with an option for States party to agree on a reciprocal basis to recognize judgments based on a choice of court agreement that was not exclusive.

[147]Based on the draft submitted to the Diplomatic Conference, the key issues for Canada at the session were:

1) retaining an exclusion for matters related to asbestos or raw materials, either specifically, or via a provision retaining the application of mandatory rules of the forum, to cover the exclusive jurisdiction reserved by British Columbia and Quebec;

2) retaining the power of a recognizing court to reduce a damage award in certain circumstances;

3) ensuring appropriate treatment of maritime law, competition law and intellectual property so that there is no federal obstacle to Canadian acceptance of the Convention; and

4) ensuring that our courts retain the power to transfer cases.

[148] The resulting text appears to meet Canada’s concerns and is generally in line with Canadian law. In addition to the matters excluded from the scope of the Convention under Article 2, a State may make a declaration under Article 21 to exclude other specific matters from its scope. This would cover asbestos or raw materials as well as any federal matters that Canada might wish to exclude. In addition, there is no prohibition on reservations so that Canada would be in a position to reserve on issues within the limits of treaty law. The authority of Canadian courts to transfer cases between courts or judicial districts remains, although in some circumstances a transfer may remove the case from the scope of the Convention with possible consequences for recognition and enforcement of the resulting judgment. The power to reduce an award of damages also remains in the Convention. While the language has changed from the original draft, the substance is intended to be the same.

[149] Overall, the Convention appears to be a positive development. Although it is quite limited in scope and allows States party to create broad exceptions, the frequency of choice of court agreements in commercial matters could make the Convention a useful tool for commercial parties doing business across borders.

[150]Two reports reviewing the Convention in light of Canadian civil and common law are to be presented to the ULCC this year. Should the Conference adopt their recommendations, a Working Group might be established to prepare uniform implementing legislation.

[151] The final text of the Convention is available at:

[152]Action required in Canada: consider preparation of uniform implementing legislation.

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

[153]This Convention, which does not yet apply to Canada, is in force in 92 States. It is aimed at replacing the process of legalisation of documents 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 on Private International Law 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 in the context of child adoption process.

[154]In October 2003, the Hague Conference convened a Special Commission on the operation of the Hague conventions on service abroad, taking of evidence abroad and legalisation. Canada participated in the Special Commission and the Canadian delegation included Manon Dostie, IPLS, Justice Canada; John Gregory, Government of Ontario; John Horn, private practitioner, British Columbia; Frédérique Sabourin and Patrick Gingras, both from Justice Québec. The conclusions and recommendations adopted by the Special Commission are available on the Hague Conference website.

[155]Canada sought agreement to include a federal state clause by way of protocol to the legalisation and the taking of evidence conventions. The Special Commission was of the opinion that there was insufficient priority for this to be the subject of a protocol on its own and that, if there were to be a protocol on other issues, then such a clause might be considered

[156]Following the Special Commission, a sub-group of the Advisory Group on Private International Law composed of John Gregory and Vincent Pelletier, as well as officials from the Department of Foreign Affairs and the IPLS, worked out a proposal for implementation and identified scenarios to address eventual difficulties.

[157]The Department of Foreign Affairs has undertaken consultations with States party to the Convention in order to identify different approaches to implementation

[158]A consultation document has been prepared for the provinces and territories to consider implementing the Convention on Legalisation in their respective jurisdictions.

[159]Action required in Canada: Launch new consultations with Canadian jurisdictions inviting them to consider the opportunity of implementing the Convention in their jurisdiction

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