The enforcement of foreign judgments and foreign public law


University of British Columbia

Date Issued


Document Type



Master of Laws - LLM




In Canadian conflict of laws there is a long-standing rule that foreign penal and tax judgments are excluded from enforcement within Canada (treaties and conventions aside). It is uncertain whether this "penal and tax rule" also extends to "other public law" as pronounced by some English judgments and scholars. Under Swiss law there is a similar rule; however, it extends, with certain limitations, to the whole body of foreign public law. In view of the ongoing trend towards internationalization and globalization, which will require courts to deal more and more with judgment enforcement, the uncertainties that go along with the concept of the exclusionary rule are problematic. Furthermore, the increasing interrelation between private and public law creates considerable doubts with respect to the scope of the exclusionary rule. In the introduction, I discuss the general requirements of judgment enforcement and put some emphasis on the concept of public policy (ordre public). In the following chapters this thesis undertakes a comparative analysis of Canadian and Swiss law with regard to the enforcement of foreign judgments which are based on foreign penal, tax and other public law. Although the legal roots of the "exclusionary rule" of the two jurisdictions are quite different, the analysis shows that there are striking similarities with respect to the results in individual cases. Several justifications for the exclusionary rule have been given. Mostly, courts have simply stated that the rule is about 200 years old and therefore so well established that it cannot be given up. Another explanation for the exclusionary rule holds that the flat refusal to enforce certain categories of judgments causes less embarrassment at the international level than scrutinizing the foreign judgment under the public policy doctrine. Some judges and scholars argue that the enforcement of penal, tax and other public law is prohibited under the principle of territorial sovereignty. After critically reviewing the different justifications, I conclude that none of them is actually convincing. Given the lack of an adequate justification for the exclusionary rule, I attempt to outline how the scope of enforceable judgments could be expanded, considering the peculiarities of both the Canadian and the Swiss legal systems. With respect to Canadian law, I conclude that the principle of comity can serve as an apt basis for a more generous attitude towards foreign tax claims and judgments. With regard to Swiss law, I am of the opinion that the exclusion of all public law judgments is much too broad. However, in the field of enforcement of tax judgments, Swiss courts would have to be empowered by either a treaty or domestic legislation.

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