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
17 Pages Posted: 14 Feb 2009 Last revised: 26 Feb 2009
Date Written: February 13, 2009
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-a-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 Drabinsky v. King appeal, the granting of leave in Yugraneft v. Rexx Management Corporation on February 26, 2009 offers cautious optimism for a definitive ruling by Canada's highest court on the issue of the applicability of provincial limitation periods to the recognition and enforcement of foreign arbitral awards. Hopefully, the Supreme Court of Canada will address the vexing problem of the lack of harmonization or unification between federal and/or inter-provincial statutory regimes under the law of limitations respecting foreign judgments and foreign arbitral awards. Until then, 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.
Keywords: conflict of laws, private international law, Supreme Court of Canada, recognition, enforcement, foreign judgments, anti-suit injunctions, parallel proceedings, lis pendens
JEL Classification: K33, K41
Suggested Citation: Suggested Citation