6 research outputs found
Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging over Pro Se Canadian Corporate Defendants? Case Comment on U.S.A. v. Shield Development
Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow function”. Procedural rules (the “form”) must be predicated on the intended purpose (“order and fairness”). Although USA v. Shield is also informative in respect of the public policy defence, the Ontario court\u27s analysis of the defence of natural justice begs scrutiny for three reasons. First, the defence of natural justice is the fulcrum between the principles of order and fairness that forms the basis for foreign judgment enforcement. Second, the factual and evidentiary record and procedural history in USA v. Shield both demonstrate that the standards of American due process and Canadian procedural fairness differ in material respects vis-a-vis default and/or summary judgments. Finally, and perhaps most importantly, the rights of unrepresented (pro se) corporate defendants to notice and right of appearance in U.S. federal and state courts are markedly different than those in Canada generally, and in Ontario, specifically. The case comment includes a comparative analysis of the U.S. Federal Rules of Civil Procedure, local Utah State Rules and the Ontario Rules of Civil Procedure, concluding that the defence of natural justice requires further refinement and proposes six additional factors for Canadian courts to apply when considering the defence of natural justice in the context of foreign default judgment enforcement
“Thinking Globally, Acting Locally”: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada
The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for a Canadian domestic court in assuming or declining jurisdiction over a foreign defendant, it does not completely restrict jurisdictional challenges by a non-resident (foreign) defendant. The residual discretion afforded by the forum non conveniens doctrine, coupled with other forms of jurisdictional challenges, remains a robust procedural tool in a litigator’s arsenal, while the boundaries of the recognized defences of fraud, natural justice and public policy continue to be tested. Part One reviews the Canadian unilateralist approach to recognition and enforcement of foreign judgments, canvassing the application of “real and substantial connection” test through a review of recent court decisions, including the Court of Appeal decision in Pro Swing Inc. v. Elta Golf Inc. on the recognition and enforceability of a non-monetary judgment. Part Two discusses bilateralism highlighted by a recent Ontario decision applying the Reciprocal Enforcement of Judgments (UK) Act. It will also identify current provincial reciprocal enforcement of judgments legislation involving reciprocating U.S. states and foreign nations. The Uniform Law Commission of Canada’s uniform legislation recently implemented by the Saskatchewan Enforcement of Foreign Judgments Act will be highlighted. In Part Three, unilateralism through an overview of the Hague Choice of Court Convention will conclude with a recommendation for ratification and implementation by Canada
“The (CISG) Road Less Travelled”: Case Comment on Grecon Dimter Inc. v. J.R. Normand Inc.
At first glance, the Supreme Court of Canada\u27s recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, Incorporated. In either of the Canadian and American GreCon decisions, the parties\u27 (and their respective counsel\u27s) characterization of the legal issues, including jurisdictional arguments, ultimately guided the domestic forum court\u27s jurisprudential analysis. Unlike GreCon v. Horner, choice of forum remained a live issue when it reached the Supreme Court of Canada in GreCon v. Normand. In both cases, the parties\u27 choice of law remained an important, but not exclusive, factor in the domestic court\u27s overall determination of proper forum. While the Supreme Court of Canada did not address the applicability of the CISG in GreCon v. Normand, perhaps another opportunity awaits Canada\u27s highest court to contribute to the CISG\u27s global jurisconsultorium
An “Unconventional Truth”: Conflict of Laws Issues Arising under the CISG
The United Nations Convention on Contracts for the International Sale of Goods, 1980 (CISG) 1 is the uniform international sales law of countries that account for two-thirds of all world trade. AfterN ten years of preparatory work by UNCITRAL, the CISG was adopted in April 1980 at the United Nations Diplomatic Conference attended by sixty-two states. It later entered into force in January 1988. From a contractual perspective, the CISG is generally regarded as the most widely adopted international convention dealing with international business transactions. All Canadian provinces have adopted and enacted the CISG, including Ontario under the International Sale of Goods Act. Currently, 73 countries are parties to the CISG, with the notable exceptions of the United Kingdom, Brazil and India.2 The number of international court and arbitration decisions is increasing exponentially.3 Yet, Canadian jurisprudence is lagging far behind. Some possible reasons are: 1. Lack of familiarity with the CISG among contracting parties, primarily due to simplistic contracts, invoices and purchase orders which do not contain a choice of law clause, opting in or out of the CISG; 2. The “Fear Factor”: Commercial lawyers drafting international contracts may be unfamiliar with the CISG’s benefits and prefer provincial sale of goods legislation or other domestic sales legislation. Oftentimes, the choice of law and choice of forum clauses are the last to be considered or negotiated;4 3. Canadian litigators have yet to embrace the CISG’s default applicability when drafting pleadings; and, 4. Canadian judges are not yet as familiar with the CISG as their international counterparts, particularly European judges, who benefit from a wealth of CISG caselaw, the Principles of European Contract Law (PECL),5 UNIDROIT Principles 6 and other international legal instruments. 7 This article will discuss the applicability of the CISG from a Canadian conflict of laws perspective---both in terms of jurisdiction and choice of law. A detailed review of the CISG or choice of law doctrine is beyond the scope of this article.8 The objectives are more modest. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and judges, to better understand and apply the CISG in the future