Published In

Osgoode Hall Law Journal

Document Type

Working Paper

Publication Date

2017

Subjects

Private International Law, Conflict of Laws, Jurisdiction, CJPTA, Hague Conference, Hague Judgments Convention

Abstract

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must be satisfied for civil and commercial judgments to be recognized under its rules. A remoter possibility, but expressly on the Conference’s agenda, is a further convention dealing with jurisdiction directly, potentially including acceptable standards of jurisdiction and dealing with issues of forum non conveniens (declining jurisdiction) and lis alibi pendens (parallel proceedings pursued concurrently in a foreign court). This paper compares the CJPTA’s jurisdictional rules with those included as “filters” in the latest draft of the judgments convention in February 2017, and with those that might form part of a further convention to harmonize jurisdictional rules directly. It concludes that the CJPTA could operate without difficulty in relation to the proposed judgments convention and, very probably, an eventual jurisdiction convention, because its jurisdictional standards are, almost without exception, more liberal than those incorporated in the Hague models. The paper also suggests that there is no reason to modify the CJPTA so as to bring it closer to the rules being developed in The Hague, since the CJPTA regulates jurisdiction, not just in international, but also in interprovincial cases, where different standards are appropriate.

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