Recent Private International Law Developments Before the Supreme Court of Canada

Not all interesting or important private international law cases make it all the way to the Supreme Court of Canada. However, in my recent article, “Recent Private International Law Developments Before the Supreme Court of Canada”, The Globetrotter, Ontario Bar Association-International Law Section Newsletter, Vol. 13, No. 2, 2009, (available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1342413 I discuss three cases involving conflict of laws issues; two of which Canada’s highest court found to be of sufficient national importance to grant leave.

Here is the abstract:

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd’s Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta’s Limitations Act, governs when a party seeks the recognition and enforcement in Alberta of a foreign arbitral award).

The Teck Cominco v. Lloyd’s Underwriters decision—released by the Supreme Court of Canada on February 20, 2009—provides clarity on the statutory codification of the forum non conveniens doctrine vis-à-vis parallel proceedings. However, it does so without reference to the alternative remedy of an anti-suit injunction, which the author considers by providing a comparative analysis of the differing jurisprudential approaches to jurisdiction and forum non conveniens following Morguard in Canada and Sinochem in the United States.

Although declining to hear the King v. Drabinsky appeal, there remains cautious optimism that the Supreme Court of Canada will grant leave in Yugraneft v. Rexx Management Corporation. If leave is not granted and unless there is federal and/or inter-provincial legislative reform to harmonize or unify the law of limitations for foreign judgments and foreign arbitral awards, a party seeking recognition and enforcement of a foreign arbitral award is cautioned to commence an application to enforce the final arbitral award within the applicable provincial limitation period.

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