constitutionalizing private international law — the canadian experience joost blom peter a. allard...

Constitutionalizing Private International Law — The Canadian Experience

Joost BlomPeter A. Allard School of Law

University of British Columbia, Vancouver

Preliminary outline — not for citation or attribution

1

Introduction

Where legal systems locate PrIL in their hierarchy of norms Status that distinguishes them from other rules of civil law?

Practical implications: Who can change the rules and subject to what constraints? In federal states, the same two questions can be asked in

relation to interstate cases as distinct from international cases

Constitutionalizing Private International Law — The Canadian Experience2

Codified systems

Codified systems have the option of placing rules of PrIL as a partial collection of rules in the civil code (as in the

Code Napoléon) as a comprehensive set of rules within the civil code (e.g.

Québec) as a comprehensive set of rules in a separate code (as in the

German EGBGB or the Swiss Law on PrIL) If codified, status is distinct from other civil law, while still

being under the control of the legislature


European Union

Effectively has a set of supra-national PrIL codes in the form of regulations enacted through the European legislative system and interpreted by the ECJ Brussels I Recast (jurisdiction and foreign judgments in civil

and commercial matters) Brussels II (jurisdiction and foreign judgment in matrimonial

matters and parental responsibility) Rome I (law applicable to contractual obligations) Rome II (law applicable to non-contractual obligations)

Change in the rules is out of the reach of national legislatures but the rules are not constitutionally entrenched


Canada and three other common law countries

England common law rules (and some old statutes) are the historical

source of PrIL of the Canadian common law jurisdictions United States

Constitution (1789) says something about PrIL More importantly, the courts have extrapolated from the

Constitutional provisions to find constraints on PrIL rules Australia

Constitution (1900) has quite a bit to say on PrIL Canada

Constitution (1867) says nothing about PrIL


England (leaving aside European law)

Nothing formally to distinguish private international rules from other rules of civil law Large parts of law of jurisdiction contained in procedural rules Enforcement of judgments was by way of assimilation to debts Choice of law left mostly to the judges, with foreign law

assimilated to a fact UK has been a multi-jurisdictional but not a federal state

judges treated intra-UK conflicts on the same basis as international ones

In 19th and 20th centuries, international cases tended to dominate


Legacy of English PrIL

Legacies to Canadian (common law) private international law Jurisdiction seen as matter of procedure rather than legal

principle Foreign judgments treated the same regardless of whether

they originated within or outside Canada Conditions for enforcement, based on the debt theory, not

seen by judges in terms of a system of inter-jurisdictional cooperation

Little legislative interest in choice of law Québec private international law markedly different


United States

US Constitution did say something about private international law Art 4, s 1 “Full faith and credit shall be given in each State

to the public Acts, Records, and judicial Proceedings of every other State . . . .”

Congress has legislative authority to make “general laws” prescribing the effect of other states’ acts, proceedings, etc., in each state but has practically not exercised it

5th Amendment (1791) and 14th (1868) — people not to be deprived “of life, liberty, or property, without due process of law”


United States, cont’d

Jurisdiction of courts of the states invalid unless the case has minimum contacts with the state Limitations on jurisdiction originally seen as a territorial

criterion implicit in full faith and credit, but later also as a due process requirement (“fair play and substantial justice”)

Recognition of sister state judgments (based on valid jurisdictional grounds) a constitutional obligation

Choice of law also subject to constitutional constraint of “significant contacts” with the state’s legal system, also linked both to full faith and credit and to due process

Full faith and credit is an interstate matter, due process is not strictly so — international rules largely coincide with interstate


Australia

Australian Constitution expressly vests large part of PrIL legislative power in the Commonwealth Can invest any court of a state with federal jurisdiction

(Constitution, s 77(iii), Cross-Vesting Act of 1987) Can legislate on service and execution throughout the

Commonwealth of civil and commercial process and the judgments of state courts (s 51(xxiv)), and

Can legislate on recognition throughout the Commonwealth of the laws, etc., and judicial proceedings of the states (s 51(xxv))

Only choice of law is not constitutionally within federal authority


Australia, cont’d

Constitution creates a federal power to impose a more or less uniform PrIL in interstate cases as far as jurisdiction and foreign judgments are concerned, and the Commonwealth has done so

Although actual differences in the laws of the states in most civil matters are relatively few . . .

. . . a desire to achieve similar uniformity in choice of law has been felt by High Court of Australia (e.g. some of the Aust HC in

Breavington v Godleman, 1988 – to be referred to again later)

Australian Law Reform Commission (Report on Choice of Law, 1992)


Canada — the constitutional framework

No express provision on full faith and credit, due process, or federal power to make uniform the provinces’ jurisdiction and foreign judgment rules

Charter of Rights (1982) introduced a right not to be deprived of “life, liberty and security of the person” except in accordance with the principles of fundamental justice” (s 7) — not property

Implicit territorial limits on the legislative authority of the provinces in relation to “Property and civil rights in the province” (Constitution Act

1867, s 92(13)) “Administration of justice in the province” (s 92(14))


Canadian constitution and PrIL

Before 1990, only link drawn between the constitution and private international law was a poorly defined doctrine as to when provincial legislation was ultra vires as extraterritorial Based on assigning a situs to the “civil right” being affected

by the legislation E.g. Newfoundland’s termination of water rights of an

electric power utility in Labrador was invalid because Hydro-Québec had a long-term contractual right to buy the power and its “civil right”, which was the target of the legislation, was situated outside the province of Newfoundland (Upper Churchill Falls Water Rights Reference, 1984 SCC)


Canada — the Morguard revolution

Decisive turn was taken in Morguard Investments Ltd v De Savoye (1990 SCC) Enforcement of Alberta default judgment in BC on “real and

substantial connection” of litigation with Alberta Common law foreign judgment rules changed because out of

keeping with underlying purpose of rules of PrIL “to facilitate the flow

of wealth, skills and people across state lines in a fair and orderly manner”

demands of inter-jurisdictional comity that, as between the provinces, is tantamount to an obligation of full faith and credit


Morguard revolution (2)

And jurisdiction of the courts of a province extends only to cases with a real and substantial connection with the province

Declared as part of the recast relationship of the provincial legal systems inter se in PrIL

but also linked to the constitution — the incapacity of a province to legislate extraterritorially

Both the “real and substantial connection” that defines courts’ territorial jurisdiction and the obligation to recognize and enforce other provinces’ judgments were subsequently declared to be “constitutional imperatives” (Hunt v T & N plc, 1993 SCC)


Responses to Morguard -- jurisdiction

To Morguard’s reconfiguration of the law of jurisdiction Legislative: Uniform Law Conference of Canada (ULCC)’s

Court Jurisdiction and Proceedings Transfer Act (1994), adopted by British Columbia, Saskatchewan and Nova Scotia

Judicial: In other provinces, jurisdiction must now be based, not on a real and substantial connection test, but a presumptive connecting factor (PCF) test: Club Resorts Ltd v Van Breda (2012 SCC)

Both try to address the indeterminacy problem inherent in using, as a rule of decision, a test (real and substantial connection) designed for constitutional use


Responses to Morguard – jurisdiction (2)

Imposing a constitutional matrix on the law of jurisdiction in the provinces’ courts has reduced the diversity between the provinces’ jurisdictional rules but (rightly) not eliminated it Quebec rules quite different (and constitutionally approved

by Spar Aerospace Ltd v American Mobile Satellite Corp (2002 SCC))

CJPTA rules different in important respects from PCF rules introduced by Van Breda

Both Quebec and CJPTA include forum of necessity provisions, whose constitutional validity is an open question, as is the concept of forum of necessity at common law

Because linked to extraterritorial incapacity, jurisdiction rules identical in interprovincial and international cases


Responses to Morguard – foreign judgments

Judicial response to Morguard’s reconfiguration of the law of foreign undefended judgments Common law test for when an international judgment is

recognized or enforced is identical to the test applied to a judgment from within Canada, and so (until now) are the defences: Beals v Saldanha (2003 SCC)

Effect of Van Breda is probably to require a PCF in relation to jurisdiction of a foreign court, not just a (multi-factorial) real and substantial connection

Enforcement is no longer limited to monetary awards but, with qualifications, extends to any other type of order: Pro Swing Inc v Elta Golf Inc (2006 SCC) (both Canadian and international judgments)


Responses to Morguard – foreign judgments (2)

Legislative response to Morguard’s reconfiguration of the law of foreign judgments Legislative reduction of range of recognized judgments from

other provinces is now impossible Registration statute in 7 provinces removed any

jurisdictional test for Canadian judgments: ULCC’s Enforcement of Canadian Judgments and Decrees Act (1997) — and the act includes non-monetary awards

Saskatchewan has codified the rules for international judgments, based on ULCC Enforcement of Foreign Judgments Act (consol. 2011), which expands common law defences re excessive damage awards — and the act includes non-monetary awards


Responses to Morguard -- choice of law

Only one SCC decision directly on choice of law: Tolofson v Jensen (1994 SCC) (motor vehicle accident outside the province) Adopted strict lex loci delicti rule with no “flexible

exception” Only leeway is for torts not readily localized, such as libel Rationale was principle of territoriality as an international

law, not constitutional, principle Dictum that constitutional parameters may imliedly mandate

such a solution in the name of uniformity (taking cue from Breavington in Aust HC)


Responses to Morguard -- choice of law (2)

A type of unilateral choice of law rule has emerged in the shape of a constitutional doctrine — based on extraterritoriality — that the law of a province may be within provincial competence and validly applicable to some circumstances but not others

Inapplicable to circumstances in which it would deny operation to the law of another province so as to violate

comity / full faith and credit (Hunt) create rights and liabilities in relation to facts that lack a

“meaningful connection” with the province (Unifund, Imperial Tobacco)


Conclusion — questions

Why did the SCC decide to construct (starting with Morguard in 1990) a constitutional framework for PrIL?

Was the constitutional route necessary or could the goals have been attained by other means?

Has the constitutionalizing project, on balance, been a good thing?


Conclusion — why SCC undertook the constitutionalizing project Why did the SCC decide to construct (starting with Morguard in

1990) a constitutional framework for PrIL? Revitalize PrIL — bolster the content of “comity” —

recognize that rules of PrIL form a constitutive part of the national legal order and should be subject to parameters from that perspective

Affirm national standards for certain aspects of PrIL (jurisdiction, full faith and credit, some choice of law)

Integrate PrIL with existing constitutional doctrine of provincial incapacity to legislate extraterritorially

These ideas appear in the cases, though not consistently


Conclusion — was the constitutionalizing necessary?

Nothing actually in the constitution required it Most of the ends that have been achieved could have been

achieved by other means To the extent that the purpose was to revitalize PrIL, it could have been

done by altering the judge-made PrIL without the constitutional “imperatives”

As, for instance, the SCC did in applying the same test for recognizing truly foreign judgments as for Canadian judgments

To the extent that the aim was to develop national standards, the constitutional standards are very loose and actual uniformity among provinces no longer seems to attract the SCC (see Van Breda)

To the extent that the aim was to integrate PrIL with the constitutional concept of extraterritoriality, the integration has not really taken place (tests are still different)


Conclusion — has the constitutionalizing been a good thing? I think the benefits of the last 25 years have been:

The links forged with the constitution have helped to stimulate judicial and legislative rethinking of the foundations of PrIL

The law of jurisdiction is now in somewhat better shape than before Morguard

The law for enforcing undefended foreign judgments is better but is now too liberal in international cases

Choice of law rules as such have not yet been directly affected by the constitutional developments but there is new (highly uncertain) law on extraterritorial effects of provincial statutes


Conclusion — has the constitutionalizing been a good thing? (2) But:

The improvements are due as much to judicial and legislative initiatives to manage the consequences (mainly uncertainty) of the new constitutional principles, as they are to the principles themselves

PrIL in some respects has been put out of the reach of any provincial legislature to change, e.g.: Recognizing Canadian judgments — including non-monetary

awards — is now mandatory, no exceptions Whether it’s open to a court to take jurisdiction as a forum of

necessity either by statute (Quebec Civil Code, CJPTA) or at common law depends on whether it’s consistent with constitutional requirements (not yet clear)


Conclusion — means did not really suit the ends

Part of the reason for the mixed result is that the project to give PrIL constitutional underpinnings really needed better instruments than the Canadian constitution offered

The 1867 Constitution Act does not protect property rights, so can’t connect PrIL to constitutional standards of civil justice (cf due process in US)


Conclusion — means did not really suit the ends (2)

All that’s available is (a) concept of extraterritoriality as limit on provincial

legislative authority and (b) the concepts seen to inhere in the obligation of “comity”

Extraterrioriality is not a well developed concept — has produced unclear outer limits on jurisdiction (real and substantial connection) and ability to legislate for cross-border situations (pith and substance must be intra-territorial, extraterritorial application requires a meaningful connection)

Comity, so far as it’s a constitutional obligation, applies only between provinces (so it’s no help in international PrIL) and says little about when comity is owed (or not owed) to another province’s law


Conclusion — lessons on constitutions and PrIL

Others have written on how the structuring role of PrIL, internationally, gives it a function analogous to a national constitutional one

That is true, but the Canadian experience shows that actually embedding PrIL in a national constitution is a complex question, the pluses and minuses of which depend to a large extent on the instruments that the constitution places — expressly or, as in Canada, impliedly — at the courts’ disposal


constitutionalizing private international law — the canadian experience joost blom peter a. allard...

Documents

foreign law

private international

law applicable

swiss law

debtschoice of law

rules of pril

international onesin

comprehensive set of