What's in a Name? Lloyd'S, Public Policy and International Comity
Canadian Business Law Journal, Vol. 37, No. 3, 2002
31 Pages Posted: 2 Oct 2002 Last revised: 8 Jul 2010
Date Written: July 8, 2010
Abstract
The Lloyd's litigation saga has met the same end in Canada as it has in most American jurisdictions. English judgments against foreign investors ("Names") have been recognized in the defendants' home jurisdiction despite challenges based on public policy.
Using the latest Ontario case as a starting point, the author examines the public policy arguments surrounding the litigation, from the original enforcement of contractual choice-of-jurisdiction clauses to the final decision to enforce the resulting foreign judgment. The author questions the usefulness of a public policy analysis at the initial jurisdictional stage. She argues that an approach based on the concept of mandatory rules (also known as "lois d'application immediate" or "lois de police") is preferable as it allows for a more coherent examination of the legislative and judicial policies at stake.
The argument for recognition based on international comity is then considered. The author argues that precedence granted to party autonomy and international comity is difficult to reconcile with the Ontario court's findings on the fundamental nature of its securities regulation. The author concludes that the Canadian court may have been overly concerned not to deviate from the path set by American courts, thereby subordinating domestic policy to the perceived imperatives of international comity.
Keywords: Foreign judgments, public policy, international comity, securities law
JEL Classification: K22, K33, K40
Suggested Citation: Suggested Citation