Abstract

https://ssrn.com/abstract=2377454
 


 



Jurisdiction and the Enforcement of Foreign Judgments


Tanya J. Monestier


Roger Williams University School of Law

2013

The Advocates' Quarterly, Vol. 42, p. 107, 2013
Roger Williams Univ. Legal Studies Paper No. 143

Abstract:     
In April 2012, the Supreme Court of Canada released its decision in what has become the pivotal case on personal jurisdiction in Canada, Van Breda v. Club Resorts Ltd. In Van Breda, the Court laid out a new framework for, and defined more precisely the content of, the “real and substantial connection” test that governs the assertion of jurisdiction over ex juris defendants. Specifically, the Court created four presumptive connecting factors that courts are to use in jurisdictional determinations. The presumptive connecting factors approach to jurisdiction was intended to increase certainty and predictability in jurisdictional determinations.

One issue that was alluded to, but ultimately left unanswered, by the Supreme Court in Van Breda was what effect the new presumptive factors framework for the real and substantial connection test had on the enforcement of judgments. Since the Supreme Court’s seminal decision in Morguard Investments Ltd. v. De Savoye in 1990, it is well established law that the real and substantial connection test for jurisdiction simpliciter is intended to be “correlated” with the real and substantial connection test used as a predicate for enforcing foreign judgments. Does this mean that courts are now supposed to use the new Van Breda framework for jurisdiction simpliciter in the judgment enforcement context? This article argues that the real and substantial connection framework established by the Court in Van Breda for jurisdiction simpliciter should not be exported outside of the particular context in which it was developed. The Van Breda approach to jurisdiction simpliciter, although seemingly straightforward, is actually a blunt tool for assessing jurisdiction – and any concerns with its application would only be magnified if applied to the enforcement of foreign judgments.

Number of Pages in PDF File: 38


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Date posted: January 12, 2014 ; Last revised: October 6, 2015

Suggested Citation

Monestier, Tanya J., Jurisdiction and the Enforcement of Foreign Judgments (2013). The Advocates' Quarterly, Vol. 42, p. 107, 2013; Roger Williams Univ. Legal Studies Paper No. 143. Available at SSRN: https://ssrn.com/abstract=2377454

Contact Information

Tanya J. Monestier (Contact Author)
Roger Williams University School of Law ( email )
10 Metacom Avenue
Bristol, RI 02809
United States
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