Canadian Courts and Uniform Interpretation: An Empirical Reality Check
(2013) 18 Uniform Law Review 1-32
32 Pages Posted: 14 Jun 2013
Date Written: June 12, 2013
The uniform interpretation of uniform law instruments is justifiably a preoccupation of the international uniform law community. However, despite the issue’s importance to the success of legal harmonisation efforts, remarkably little is known about how national courts actually interpret international uniform laws. The literature remains almost entirely anecdotal; no systematic study has been made of the courts of even one state or region to determine whether, as a group, they do or do not interpret international uniform law instruments with an eye to the international legal context.
This article describes an empirical study of Canadian courts’ interpretations of five representative international uniform law instruments implemented in Canada. In particular, it describes the extent to which which Canadian courts engage with foreign sources in order to reach internationally uniform interpretations. According to the data collected, Canadian courts do not appear to be hostile to foreign sources when interpreting statutes based on international uniform laws, but neither do they take the initiative to consider foreign sources or otherwise seek internationally uniform interpretations. The traditional determinants of judicial interpretations of domestic statutes (the text and subject-matter of the statue and the character of high-level domestic precedents) continue to predominate. In other words, efforts to promote uniform interpretation of international uniform laws appear have had little effect, at least below the level of the Supreme Court of Canada. The article concludes by discussing the implications of this study for the promotion of uniform interpretation in national courts.
Keywords: uniform law, international law, national courts
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