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



a. Convention on the Form of an International Will (UNIDROIT)

[193] - Subject: This Convention applies to 12 States, including Canada where it has been extended to 8 provinces and territories since 1977. To facilitate implementation of the Convention, the ULCC has prepared a Uniform Act.

[194] The purpose of the Convention is to establish an international form of will, additional to the forms in use in Contracting States, which is to be recognised as valid in all Contracting States. Article 1 of the Convention stipulates that each Party undertakes to introduce into its law the rules regarding an international will set out in the Annex to the Convention. In choosing the form of an international will, testators know that their will is to be recognised in all Contracting States without reference to the conflict of law rules concerning the validity of wills.

[195] - Action required in Canada: Consultation with the five other jurisdictions that have yet to implement the Convention.

b. Convention on the Law Applicable to Successions (Hague Conference)

[196] - Subject: This Convention, which has been signed by Argentina, Luxembourg, Switzerland and the Netherlands and which has only been ratified by the Netherlands, is not in force, as three ratifications are necessary. The Convention determines the law applicable to the estates of deceased persons where more than one State is concerned. The Convention's main feature is the principle of unity whereby the entire succession of an estate is governed by one law unless a choice of law has been made.

[197] Canada actively participated in the negotiation of this Convention which was adopted in 1988. Professor Donovan Waters from the University of Victoria was appointed Special Rapporteur and Professor Talpis from the Université de Montréal was the expert advisor to the Canadian delegation. Since 1994, consultation regarding possible support in Canada for the implementation of this Convention has been suspended, in order to allow further study of the Convention to answer questions raised as to its interpretation.

[198] At the request of the Secretary General, the Advisory Group considered the suggestion that Canada ratify the Convention soon, after a new round of consultation. It was not felt opportune to undertake such consultation at this point given that the Convention is not in force.

[199] - Action required in Canada: Consultation on possible Canadian ratification and implementation, when appropriate.

c. Convention on the Return of Stolen or Illegally Exported Cultural Objects (UNIDROIT)

[200]- Subject: This Convention, which was finalised under the auspices of UNIDROIT in June 1995, sets out rules for the restitution or return of stolen or illegally exported cultural objects, subject to certain limitation periods. The Convention also provides for compensation of bona fide purchasers and addresses the issue of the proper jurisdiction in which to bring a claim.

[201] The Convention has 17 States party including China, Ecuador, Lithuania, Paraguay and Romania. It entered into force for Spain on November 1, 2002 and for Cambodia on January 1, 2003.

[202] In January 2002, Unidroit sent to the Stat-parties to the convention an Explanatory report about the convention and its implementation.

[203] - Action required in Canada: Undertake consultations in conjunction with the Department of Heritage Canada with a view to determining whether Canada should become a party to the new Convention.

d. Convention on the Law Applicable to Trusts (Hague Conference)

[204] - Subject: This Convention is now in force in 11 States, including five exclusively civil law jurisdictions. It entered into force in Canada on January 1, 1993 and now applies to seven jurisdictions: Alberta, British Columbia, Prince Edward Island, New Brunswick, Newfoundland, Manitoba and Saskatchewan.

[205] The Convention aims at resolving issues of conflict of laws related to the establishment and management of trusts and problems related to their recognition, especially in countries with a civilian tradition.

[206] - Action required in Canada: Consultation with the jurisdictions that have yet to implement the Convention in order to have the Convention in force throughout Canada in the near future.

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