Published online by Cambridge University Press: 09 March 2016
This article discusses four judgments of the Supreme Court of Canada that transformed private international law in Canada and represent a striking episode in the internationalization of law — a form of judicial activism in the name of the international. It is argued that these cases evidence a mode of internationalization by internationalist policy consciousness that is distinct from, although often complementary to, internationalization via the mechanism of international treaties or changes in customary international law. The key features of this approach suggest some resemblances to the vision found in the traditions of liberal internationalism, Canadian internationalism, and public international law. The article cautions against several general dangers in the use of this approach in law reform and adjudication and uses two specific doctrinal issues in private international law to demonstrate what a richer policy discourse concerning internationalism would be.
1 Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 [hereinafter Morguard]; Amchem ProductsInc. v. British Columbia (WCB), [1993] 1 S.C.R. 897 [hereinafter Amchem]; Hunt v. T & Nplc, [1993] 4 S.C.R. 289 [hereinafter Hunt]; and Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 [hereinafter Tolofson].
2 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
3 P. North, “Reform but Not Revolution” (1990) 220 Rec. des Cours 1.
4 For a critical assessment of Canadian policy reform instituted “in the name of globalization,” see Laxer, J. False God: How the Globalization Myth Has Imperiled Canada (Toronto: Lester, 1993) at 3.Google Scholar
5 See, for example, Edinger, E. “The Constitutionalization of the Conflict of Laws” (1995) 25 Can. Bus. L.J. 38.Google Scholar
6 For a model examination of the crucial role of the European Court of Justice inactively constructing the process of European integration, see Weiler, J. H. H. “The Transformation of Europe” (1991 ) 100 Yale L. J. 2403.CrossRefGoogle Scholar I explore the activist role of the Supreme Court of Canada under the leadership of Justice Gérard La Forest in internationalist reform in private international law as well as in other areas of Canadian law in Wai, R. “Justice Gérard La Forest and the Internationalist Turn in Canadian Jurisprudence,” in Johnson, R. and McEvoy, J. eds., Gérard V. La Forest at the Supreme Court of Canada 1985-1997 (Winnipeg: Supreme Court of Canada Historical Society by the Canadian Legal History Project, 2000) 421.Google Scholar
7 The connection of the judgments in private international law to decisions in other areas of Canadian law is explored in Wai, supra note 6.
8 Legal studies of globalization can offer helpful detail to more amorphous and abstract studies of globalization and internationalization. From this perspective, this article is an effort to provide a “thick” description of a particular episode in the processes of globalization and internationalization, showing one venue where that process is relected and instituted, and showing as well the connection of this episode to some of the larger social contexts and policy issues at stake in globalization. This is the approach invoked by many as the way forward for studies of globalization; see, for example, Cheah, P. and Robbins, B. eds., Cosmopolitics: Thinking and Feeling beyond the Nation (Minneapolis: University of Minnesota Press, 1998).Google Scholar The concept of thick description is associated with the cultural anthropologist Clifford Geertz; see, for example, Geertz, C. Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983).Google Scholar
9 A sense of the peculiar opportunity offered to study both the ideational and material aspects of globalization and its construction might explain the interest in fields related to private international law and international business law recently evidenced by leading figures from other disciplines who specialize in globalization such as the sociologists Pierre Bourdieu and Yves Dezalay (see, for example, Bourdieu, P. “Foreword,” in Dezalay, Y. and Garth, B. eds., Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago: Chicago University Press, 1996)),Google Scholar the systems theorist Gunther Teubner (see, for example, Teubner, G. ed., Global Law without a State (Aldershot, UK: Dartmouth, 1997))Google Scholar, and the political economist Saskia Sassen (see, for example, Sassen, S. Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996)Google Scholar; Sassen, S. Globalization and Its Discontents: Essays on the New Mobility ofPeople and Money (New York: New Press, 1998)).Google Scholar
10 See, for example, Castel, J-G. Canadian Conflict of Laws, 4th ed. (Toronto: Butter-worths, 1997) c. 2Google Scholar; Baer, M. et al., eds., Private International Law in Common Law Canada (Toronto: Emond Montgomery, 1997) at 4.Google Scholar
11 All of these cases are cited in note 1.
12 This is admirably done in a number of case comments and articles, some of which are referred to in the notes following; more generally, see Castel, supra note 10, especially c. 2.
13 Morguard, supra note 1 . For case commentary, see “Symposium: Recognition of Extraprovincial and Foreign Judgments” (1993) 22 Can. Bus. L. J. 1; Blom, J. “Conflict of Laws — Enforcement of Extraprovincial Default Judgments — Real and Substantial Connection: Morguard Investments Ltd. v. De Savoye ” (1991) 70 Can. Bar Rev. 733 Google Scholar; Glenn, P. “Foreign Judgments, the Common Law and the Constitution: De Savoyev. MorguardInvestments Ltd.” (1992) 37 McGill L. J. 537.Google Scholar
14 Morguard, supra note 1 at 1104–10.
15 The uncertainty generated and the lowered standard meant that it would be very difficult for counsel to advise a client not to defend abroad. Moreover, once defence was begun, it is arguable that the party could be said to have voluntarily submitted. See Blom, supra note 13. The United States faced a similar situation at the International Court of Justice [hereinafter ICJ] in Military and Paramilitary Activities in and against Nicaragua, [ 1986] I.C.J. Rep. 14. The United States, by arguing on the jurisdiction point, was taken by some of the judges to have voluntarily submitted on the merits. This questionable interpretation of the nature of ICJ jurisdiction has been severely criticized: see, for example, Reisman, M. Systems of Control in International Adjudication and Arbitration (Durham, NC: Duke University Press, 1992) c. 2.Google Scholar
16 See “Symposium: Recognition of Extraprovincial and Foreign Judgments,” supra note 13; Sullivan, J. “The Enforcement of Foreign Judgments in B.C. — Ten Years after Morguard” (2001) 59 The Advocate 399.Google Scholar
17 For example, in Amchem, supra note 1 at 913–14; Hunt, supra note 1 at 321–28; Tolofson, supra note 1 at 1048–49.
18 Morguard, supra note 1 at 1095.
19 Ibid. at 1095–96.
20 Ibid. at 1098.
21 Ibid. at 1108–09. For a cautious critique of some ambiguities of this approach, see Blom, supra note 13.
22 Castel, supra note 10 at 44.
23 McEvoy, J. “Federalism, Territorialism and Justice La Forest,” in Johnson, and McEvoy, , supra note 6 at 345.Google Scholar
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25 Scholars of Canadian constitutional law and conflict of laws had been speculating on this possibility in the years preceeding Morguard. In particular, see Swan, J. “The Canadian Constitution, Federalism and the Conlict of Laws” (1985) 63 Can. Bar Rev. 271 Google Scholar and Black, V. “Enforcement of Judgments and the Conflict of Laws” (1989) 9 Oxford J. Leg. Studies 547,CrossRefGoogle Scholar cited by the court in Morguard, supra note 1 at 1094.
26 Article IV. 1 of the US constitution provides that “[f]ull faith and Credit shall be given in each State to the public Acts, Records and Judicial Proceedings of every other State.”
27 See Blom, supra note 13.
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30 In Canada, litigation and legislation related to asbestos has been the source of many leading decisions testing the limits of the rules of civil procedure, including the conlict of laws. The Supreme Court of Canada had heard only a few years earlier an asbestos litigation case on the standard for dismissal of an action for failure to state a cause of action; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Hunt, supra note 1 arose out of the same asbestos litigation. Asbestos even plays a role in Canadian litigiousness at the interstate level of the World Trade Organization [hereinafter WTO]; see, for example, European Communities — Measures Affecting Asbestos and Asbestos-Containing Products, 18 September 2000, Doc. WT/DS135/R (Panel Report), 12 March 2001, Doc. WT/DS135/AB/R (Appellate Body Report), in which Canada unsuccessfully challenged French restrictions on the import of asbestos and asbestos products.
31 Laker Airways v. Sabena, Belgian World Airlines, 731 F. 2d 909 ( 1984). For a description of the Laker Airways litigation, see Collins, L. Essays in International Litigation and the Conlict of Laws (Oxford: Oxford University Press, 1994) at 110–16.Google Scholar The reaction of the US court in the Laker Airways litigation is mentioned in Amchem, supra note 1 at 913.
32 Amchem, supra note 1 at 905–08.
33 Ibid. at 932.
34 Ibid., quoting from SNI Aérospatiale v. Lee Kui Jak, [1987] 1 A.C. 871 (H.L) [hereinafter Aérospatiale].
35 Ibid. at 934.
36 Ibid. at 914–15.
37 Ibid. at 915.
38 Ibid. at 921.
39 Antares Shipping Corp. v. The Ship “Capricorn,” [1977] 2 S.C.R. 422.
40 Spiliada Maritime Corp. v. Cansulex Ltd., [1987] 1 A.C. 460 (H.L.) [hereinafter Spiliada]; Aérospatiale, supra note 34.
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47 Quebec Business Concerns Records Act, R.S.Q., c. D-12.
48 Hunt, supra note 1 at 327.
49 Morguard, supra note 1 at 1099, cited in Hunt, supra note 1 at 322.
50 Hunt, supra note 1 at 322.
51 Ibid. at 330.
52 Ibid. at 331.
53 Tolofson, supra note 1. For commentary, see Castel, J.-G., “Back to the Future! Is the New ‘Rigid’ Choice of Law Rule for Interprovincial Torts Constitutionally Mandated?” (1995) 33 Osgoode Hall L. J. 35 Google Scholar; Kincaid, P. “Jensen v. Tolofson and the Revolution in Tort Choice of Law” (1995) 74 Can. Bar Rev. 537.Google Scholar
54 The tort/contract distinction can be overstated. Many disputes involve overlapping claims in contract and tort. Moreover, some tort claims involve situations with a transactional character where there are possibilities of bilateral bargaining and negotiation; see, for example, Whincop, M. and Keyes, M. “The Market Tort in Private International Law” (1999) 19 Northwestern J. Int’l L. and Bus. 215.Google Scholar
55 It is therefore not surprising that choice of law in tort was central to the development of the “governmental-interest analysis” approach in the United States; see, for example, Babcock v. Jackson, 12 N.Y 2d 473 ( 1963); Currie, B. Selected Essays on the Conflict of Laws (Durham, NC: Duke University Press, 1963)Google Scholar; Brilmayer, L. Conflict ofLaws, 2nd ed. (Boston: Little, Brown, 1995) c. 2.Google Scholar
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61 Tolofson, supra note 1 at 1049.
62 Ibid.
63 Ibid. at 1049–50.
64 Ibid. at 1050.
65 Ibid. at 1051.
66 Ibid. at 1058.
67 Ibid. at 1059.
68 There are, in addition, the private international law provisions of specialized conventions such as the Convention for the Unification of Certain Rules Relating to International Carriage by Air, October 12, 1929, 137 L.N.T.S. 13, Can. T.S. 1947 No. 15, as amended by the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, September 28, 1955, 478 U.N.T.S. 371, Can. T.S. 1964, No. 29.
69 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, November 15, 1965, 658 U.N.T.S. 163; Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, March 18, 1970, 847 U.N.T.S. 241. See generally, Droz, G. “A Comment on the Role of the Hague Conference on Private International Law” (1994) 57 Law and Contemp. Probs. 3.CrossRefGoogle Scholar
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71 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 38, Can. T.S. 1986 No. 43 [hereinafter New York Convention]. See Castel, J.-G. et al., eds., The Canadian Law and Practice of International Trade with Particular Emphasis on Export and Import of Goods and Services, 2nd ed. (Toronto: Emond Montgomery, 1997) at 724–25.Google Scholar
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74 Dezalay and Garth, supra note 9, provide a sophisticated sociological analysis of the establishment of international commercial arbitration in a number of different jurisdictions.
75 The failure to fully attend to the role of national courts is one of the principal weaknesses of the account by Dezalay and Garth, supra note 9, of the establishment of the arbitration regime.
76 For example, see the review of the legislative provisions and judicial interpretation related to international commercial arbitration in Pepper, R. “Why Arbitrate?: Ontario’s Recent Experience with Commercial Arbitration” (1998) 36 Osgoode Hall L. J. 807 Google Scholar; Castel et al., supra note 71 at c. 21; Quintette Coal Ltd. v. Nippon Steel Corp., [1991] 1 W.W.R. 219 (B.C.C.A.), leave to appeal to S.C.C. refused [ 1990] 2 S.C.R. x.
77 Burlington Northern Railroad Co. v. Canadian National Railway Co., [1997] 1 S.C.R. 5.
78 Burlington Northern Railroad Co. v. Canadian National Railway ( 1995), 7 B.C.L.R. (3d) 80 at 94 (B.C.C.A.), quoting from Boart Weden AB v. NYA Stomnes AB (1988), 41 B.L.R. 295 at 302–03 (Ont. H.C.).
79 Convention on the Civil Aspects of International Child Abduction, October 25, 1980, Can. T.S. 1983 No. 35. This convention was also considered in W.(V.) v. S.(D.), [1996] 2 S.C.R. 108; and briefly in Gordon v. Goertz, [1996] 2 S.C.R. 27 at 76–77, L’Heureux-Dubé J.
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82 Thomson, supra note 80 at 605, La Forest J.
83 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, September 27, 1968, 1262 U.N.T.S. 1653 [hereinafter Brussels Convention]; Convention on Jurisdiction and the Enforcement of Judg-ments in Civil and Commercial Matters, September 16, 1988, 1659 U.N.T.S. 13 [hereinafter Lugano Convention]; Convention on the Law Applicable to Contractual Obligations, June 19, 1980, 1605 U.N.T.S. 59 [hereinafter Rome Convention].
84 For a useful discussion of the Hague Conference on Private International Law negotiations concerning a treaty for recognition and enforcement of judgments, see “Symposium Enforcing Judgments Abroad: The Global Challenge” (1998) 24 Brooklyn J. Int’l L. 1; A. von Mehren, "Recognition and Enforcement of Foreign Judgments: A New Approach For the Hague Conference?” ( 1994) 57 Law and Contemp. Probs. 271.
85 Black, V. “Commodifying Justice for Global Free Trade: The Proposed Hague Judgments Convention” (2000) 38 Osgoode Hall L. J. 267.Google Scholar The Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters was adopted by the Special Commission of the Hague Conference on October 30, 1999; text can be found online at <http://www.hcch.net/e/ conventions/draft36e.html> (last modified: October 30, 1999).
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97 Schachter, O. “The Invisible College of International Lawyers” (1977) 72 Northwestern U. L. Rev. 217.Google Scholar
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102 Ibid. at 228–33.
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107 Ibid. at 13.
108 The only two conventions related to commercial matters that have been widely accepted concern relatively minor subjects: see discussion in note 69.
109 See von Mehren, supra note 84.
110 Black, supra note 85, observes that representation at these meetings is shifting from the grand old men of private international law to international trade diplomats. The latter may be more interested in the give-and-take of international negotiations than the search for common principles or issues of justice of older unification projects.
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117 See, generally,Johnson and McEvoy, supra note 6.
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127 For example, the decision of the US Supreme Court in Mitsubishi Motors Corp. v. Soler-Chrysler Plymouth Inc., 473 U.S. 614 (1985) [hereinafter Mitsubishi Motors].
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136 Kennedy, supra note 104 at 13.
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140 See, for example, Mill, J. S., The Principles of Political Economy, 7th ed. (London: Longmans, Green and Company, 1909),Google Scholar Book III, chapters 17 and 18.
141 See, for example, Mill, J. S., Considerations on Representative Government (1861)Google Scholar chapter XVIII (“Of the Government of Dependencies by a Free State”), in Rob-son, supra note 139, vol. XIX, Essays on Politics and Society; Mill, J. S., “Wakefield’s The New British Province of South Australia,” in Robson, , supra note 139, vol.22, NewspaperWritings, 738 Google Scholar; Mill, J. S., “England and Ireland,” in Robson, , supra note 139, vol. 6, Essays on England, Ireland, and the Empire, 505 Google Scholar; Mill, supra note 140, Book II, c. 13.
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146 Brussels Convention, supra note 83.
147 Tolofson, supra note 1 at 1052.
148 See Castel, J-G., and Walker, J., eds., Canadian Conflict of Laws, 5th ed. (Toronto: Butterworths, 2002) at sections 13.7 (forum selection), 31.2(a) (express choice of law in contract), 15.3–15.4 (arbitration clauses).Google Scholar
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150 Dicey & Morris, supra note 92 at 1-2; Castel, supra note 10 at 4–5.
151 See, for example, Dicey & Morris, supra note 92 at 88–91.
152 In Story, J. Commentaries on the Conflict of Laws (Boston: Hilliard, Gray and Company, 1834) at 34,Google Scholar Joseph Story notes that comity was based on the idea of laws which arise from mutual interest and utility, from a sense of the inconveniences that would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return.
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158 Pogge, supra note 154 at 48–49.
159 Ibid.
160 Ibid. at 49.
161 This corresponds to the cosmopolitans identified by Kennedy, supra note 104 at 13.
162 See, for example, Slaughter, supra note 120.
163 Morguard, supra note 1 at 1096.
164 Tolofson, supra note 1 at 1051.
165 Hunt, supra note 1 at 327.
166 Brussels and Rome Conventions, supra note 83. See, for example, Report on the Convention on the Law Applicable to Contractual Obligations, 1979 O.J. (C59) 1, 4–5 (Giuliano-Lagarde Report), reprinted in Plender, R., The European Contracts Convention: The Rome Convention on the Choice of Law for Contracts, Annex V (London: Sweet and Maxwell, 1991)Google Scholar; Dicey & Morris, supra note 92 at 1195. For this view of the European regime, see Brand, R. “Recognition of Foreign Judgments as a Trade Law Issue: The Economics of Private International Law,” in Bhandari, J. and Sykes, A., eds., Economic Dimensions in International Law: Comparative and Empirical Perspectives (Cambridge: Cambridge University Press, 1997) 592.Google Scholar
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174 Brand, supra note 166, pairs these two kinds of arguments in advocating liberalized rules on recognition of judgments.
175 See, for example, Brand, supra note 166 at 613–26.
176 This concern is, of course, connected to the perpetual debate in most areas of law concerning the value of rules versus standards and certainty versus flexibility. See, for example, Hay, P., “Flexibility versus Predictability and Uniformity in Choice of Law: Relections on Current European and United States Conlict Law” (1991) 226 Rec. des Cours 281.Google Scholar
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187 The potential links of private law and international trade are raised by the challenge in Loewen Group Inc. and Raymond Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Notice of Claim, October 30, 1998 [hereinafter Loewen v. United States] under Chapter 11 of the North American Free Trade Agreement, December 17, 1992, Can T.S. 1994 No.2, (1993) 32 I.L.M. 605 [hereinafter NAFTA]. This case is discussed later in this article under the heading “Recognition and Enforcement of Judgments: The Example of US Punitive Damage Awards.”
188 Hunt, supra note 1 at 327–28.
189 See, for example, Protection of Trading Interests Act 1980, s. 6 (U.K.); Foreign Extraterritorial Measures Act, R.S.C. 1985, c. F-29, s. 9.
190 Morguard, supra note 1 at 1096–97.
191 Amchem, supra note 1 at 913–14.
192 Ibid. at 934.
193 Hunt, supra note 1 at 321–27.
194 It is arguably the achievement of this effect that informs all the obfuscation of doctrine, process, and institutions that David Kennedy has identified as being central to international law; Kennedy, D. International Legal Structures (BadenBaden: Nomos Verl.-Ges., 1987).Google Scholar The important objective is that states, for all the obscurities introduced by international law doctrine and process, are at least arguing about their concerns in terms of law and in legal institutions, rather than in terms of, and using the instruments of, pure power.
195 Kramer, L. “Rethinking Choice of Law” (1990) 90 Columbia L. Rev. 277 at 339–45CrossRefGoogle Scholar; Brilmayer, supra note 55 at c. 4. For an early example of the use in international law of game theory models taken from international relations, see Abbott, K., “Modern International Relations Theory: A Prospectus for International Lawyers” (1989) 14 Yale J. Int–l L. 335.Google Scholar
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197 Brilmayer, supra note 55 at 184–87; Axelrod, supra note 196.
198 Kramer, supra note 195 at 342–44.
199 Ibid. at 343, n. 228.
200 Brilmayer, supra note 55 at 188–89 (contrasting “diffuse reciprocity” to “specific reciprocity”); Kramer, supra note 195 at 344, discusses the interesting example of the development of rules with respect to the recognition of foreign judgments in the pre-revolutionary era in the United States.
201 Brilmayer, supra note 55 at 185. The concept is developed by Schelling in The Strategy of Conlict, supra note 196; Kramer, supra note 195. See also Kramer, L. “More Notes on Methods and Objectives in the Conlict of Laws” (1991) 24 Cornell Int’l L. J. 245.Google Scholar
202 Amchem, supra note 1 at 934.
203 Tolofson, supra note 1 at 1059.
204 Morguard, supra note 1.
205 The concept of the liberal peace is taken from Kant, I., “Perpetual Peace,” in Humphrey, T., ed., Perpetual Peace and Other Essays (Indianapolis: Hackett Publishing Company, 1983).Google Scholar The modern restatement of the concept as an empirical claim concerning contemporary international relations is found in Doyle, M., “Kant, Liberal Legacies, and Foreign Affairs: Parts One and Two” (1983) 12 Philosophy and Public Affairs 205 and 325.Google Scholar See also Russett, B., Grasping the Democratic Peace: Principles for a Post Cold-War World (Princeton, NJ: Princeton University Press, 1993)Google Scholar; Moravscik, A., “Taking Preferences Seriously: A Liberal Theory of International Politics” (1997) 51 International Organization 513.CrossRefGoogle Scholar
206 Slaughter, supra note 138.
207 Ibid. at 524.
208 Ibid. at 525.
209 Ibid.
210 Ibid. at 521.
211 Silberman, supra note 43.
212 For example, Articles I and III of the General Agreement on Tariffs and Trade, October 30, 1947, 55 U.N.T.S 194, T.I.A.S. No. 1700 [hereinafter GATT].
213 See, for example, Trebilcock, supra note 181 at c. 9. In that chapter, Trebilcock groups together as “discrimination,” human rights discrimination, immigration policy, and restrictions on free trade. The connection between liberal attitudes towards free trade and to migration are also evoked in Trebilcock, M. and Howse, R., The Regulation of International Trade, 2nd ed. (London: Routledge, 1999) at 1, 13, and 14.Google Scholar There are, however, arguably as many differences as similarities between these topics from a discrimination perspective. For example, the “discrimination” contained in trade restrictions often has less serious consequences for disadvantaged groups and such restrictions are also often justifiable in a way that the other kinds of discrimination are not.
214 See the section entitled “Cosmopolitanism and Anti-Parochialism” earlier in this article.
215 See Hirschman, A. O., The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton, NJ: Princeton University Press, 1977) at 79–82.Google Scholar Hirschman is mainly concerned with seventeenth- and eighteenth-century writers, such as Montesquieu and James Steuart. The idea of the doux commerce as a civilizing function continued on in liberal writings on international trade. For example, Mill ends his inluential chapter on international trade with the observation that “the economical advantages of commerce are surpassed in importance by those of its effects which are intellectual and moral”; Mill, supra note 140 at 581–82.
216 Joseph Nye labels these two categories of liberal internationalists as “commercial/trade” liberals and “sociological/transnational” liberals; see Nye, J., “Neorealismi and Neoliberalism” (1988) 40 World Politics 235 at 245–47.CrossRefGoogle Scholar More generally, see Ceadel, M., Thinking about Peace and War (Oxford: Oxford University Press, 1989) especially chapters 6 and 7.Google Scholar
217 See, for example, Cobden, R., Russia, 1836 , in Cobden, R., Political Writings of Richard Cobden (London: Unwin, 1903) 122 at 222–25.Google Scholar
218 See Wai, supra note 169.
219 Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers’ Publishing Company, 1989) at 55–73.Google Scholar Koskenniemi considers the view of the Westphalian Peace as a form of “social contract” in which the liberal structure of politics was adopted into international relations in Europe (at 73).
220 On the Pareto criteria in welfare economics, see, for example, Trebilcock, supra note 181 at 7–8.
221 For a survey of rational cooperation models and international law, see Snidal, D., “Political Economy and International Institutions” (1996) 16 Int’l Rev. L. and Econ. 121.CrossRefGoogle Scholar
222 Koskenniemi, supra note 219.
223 See Wai, supra note 169 at 235-39 (limits on arguments from cooperative beneit).
224 This, of course, is a version of the Holmesian dictum from Lochnerv. New York, 198 U.S. 45 at 76 (1905), Holmes J., dissenting, that “g]eneral propositions do not decide concrete cases.” This general critique of formalist legal reasoning was a key plank of legal realism. Here, I follow critical legal studies scholars in applying the dictum to policy reasoning in law; see, for example, Kennedy, D., “Form and Substance in Private Law Adjudication” (1976) 89 Harv. L. Rev. 1685 CrossRefGoogle Scholar; Kennedy, D., “A Semiotics of Legal Argumentation” (1991) 42 Syracuse L. Rev. 75 Google Scholar; Kelman, M., A Guide to Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987), c. 4 and 5Google Scholar; Singer, J., “Legal Realism Now” (1988) 76 Cal. L. Rev. 465.Google Scholar For the development of this theme more generally in social theory, see Unger, R., False Necessity (London: Verso, 1987).Google Scholar
225 Singer, J., “Real Conflicts” (1989) 69 Boston Univ. L. Rev. 1.Google Scholar
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227 A danger especially with respect to developing countries; see, for example, Sornarajah, M., “The Myth of International Contract Law” (1981) J. World Trade 187 at 200–01.Google Scholar
228 In Bank of Nova Scotia v. Angelica White wear Ltd.,1987] 1 S.C.R. 59, the Supreme Court of Canada signalled its awareness of this problem in an international commercial context involving letters of credit. Justice Le Dain for the court considered whether the use of letters of credit as an important payment mechanism in international commerce would be advanced by expanding or restricting the fraud exception to a bank’s obligation to pay under a letter of credit. Justice Le Dain described how, on the one hand, the international commercial use of letters of credit would be harmed by a broad fraud exception that “created serious uncertainty and lack of conidence in the operation of letter of credit operations,” but that, on the other hand, the principle of autonomy of the letter of credit should not be used to “encourage or facilitate fraud” in international transactions (at 72 ).
229 Kennedy, D. and Michelman, F., “Are Contract and Property Efficient?” (1980) 8 Hofstra L. Rev. 711 at 741.Google Scholar
230 Ibid.
231 I elaborate on the goal of transnational regulation in private international law in Wai, supra note 168.
232 See Wai, supra note 169 at 236–39.
233 It may be that the expansive application of Morguard, supra note 1, to recognition and enforcement of default judgments from non-Canadian jurisdictions may be an example of this kind of misperception; see Blom, supra note 28.
234 I discuss these similarities in Wai, supra note 6.
235 Bull, H., The Anarchical Society (London: Macmillan, 1977).CrossRefGoogle Scholar
236 See, for example, Trebilcock and Howse, supra note 213 at 7-9, for a discussion of this argument in the context of international trade regulation.
237 Effectively, non-reciprocity means abandonment of a “tit-for-tat” strategy that may actually serve the strategic purpose of achieving a rough form of international cooperation; see Brilmayer, supra note 55 at 184–87.
238 Some lower courts have applied Morguard to international cases of recognition and enforcement; see, for example, Moses v. Shore Boat Builders Ltd. ( 1993), [1994] 106 D.L.R. (4th) 654 (B.C.C.A.), leave to appeal to S.C.C. refused, [1994] 1 S.C.R. xi [hereinafter Moses]; Arrowmaster Incorporated v. Unique Forming Ltd. (1993) 17 O.R. (3d) 407 (Gen.Div.). See, generally, Blom, supra note 28; Sullivan, supra note 16.
239 For example, United States v. Ivey, (1995) 26 O.R. (3d) 533 at 549, citing the principle of comity from Morguard in support of reform of the rule.
240 Slaughter, supra note 138.
241 In this connection, it is interesting in this respect to compare the majority Supreme Court of Canada judgments with respect to extradition to the United States to face the potential death penalties in Kindler, supra note 118, and Re Ng Extradition, supra note 118, which were written by a court contemporaneously generating the tetralogy in private international law. In contrast, the recent judgment in United States v. Burns, supra note 119, may indicate a rethinking at the court concerning the nature of its internationalism in the criminal law area. For an argument concerning some of the shared characteristics of the extradition cases and the tetralogy in private international law, see Wai, supra note 6.
242 Singer, supra note 225 at 41.
243 Rheinstein, M., “How to Review a Festschrift” (1962) 11 Am. J. Comp. L. 632 at 664,CrossRefGoogle Scholar quoted in Juenger, F., Choice of Law and Multistate Justice (Boston: Martinus Nijhoff, 1993) at 161, n. 997.Google Scholar
244 See Dicey & Morris, supra note 92 at 5–6:
[I]t is clear that English courts apply e.g. French law in order to do justice between the parties, and not from any desire to show courtesy to the French Republic, nor even in the hope that if English courts apply French law in appropriate cases, French courts will be encouraged in appropriate cases to apply English law.
The authors’ choice of France for their example is of interest.
245 Tolofson, supra note 1 at 1058.
246 Castel, supra note 10 at 67.
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249 See McEvoy, supra note 23.
250 A.G. Can. v. A.G. Ont. (Labour Conventions), [1937] A.C. 326. For the debates about the treaty implementation power, see Hogg, supra note 115 at c. 11; La Forest, G. V. and Associates, Water Law in Canada: The Atlantic Provinces (Ottawa: Information Canada, 1973) at 63–68.Google Scholar
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252 NAFTA, supra note 187.
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254 Hunt, supra note 1.
255 Another example of the indirect impact of internationalization on federal relations is seen in the recent decision of the Supreme Court of Canada in Ward v. Canada (Attorney General), 2002 S.C.C. 17, where the court considered whether federal legislation restricting the trade in seal and seal products fell within the federal fisheries power under section 91(12) of the Constitution Act, 1867, supra note 24, or fell instead within provincial powers over property and civil rights under section 92(13). In characterizing the legislation, the court referred to the desire of the federal government to respond to concerns about international sales boycotts of seal and other isheries products as relevant to its characterization of the federal legislation as being in pith and substance concerned with matters of management and control of the fisheries. Ibid. at paras. 2, 8, and 21.
256 Even within the more “legalistic” processes established in international institutions such as the WTO, dispute resolution retains signiicant “pragmatic” elements; see, generally, Shell, G. R., “Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization” (1995) 44 Duke L. J. 829.CrossRefGoogle Scholar
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258 See Hogg, supra note 115 at sections 1.8, 11.2, and 11.3.
259 In Wai, supra note 6, I compare and contrast the lack of deference in the tetralogy with (1) Justice La Forest’s legal realist take on the limited effectiveness of adjudication in comparison to legislative, executive and administrative processes; (2) his generally deferential attitude towards the legislative and executive branches in the application of the Charter; and ( 3) his restricted idea of the role of national courts in other international areas, such as in extradition.
260 Canada v. Schmidt, supra note 118; R v. Harrer, [1995] 3 S.C.R. 562.
261 United States v. Cotroni; United States v. El Zein, [1989] 1 S.C.R. 1469 at 1487–90.
262 Justice La Forest notes in Hunt, supra note 1 at 328, that the federal Parliament is expressly permitted by the constitution to legislate with international extraterritorial effect; see Statute of Westminster,1931 (U.K.), 22 Geo.V, c.4, s. 3: “It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.”
263 Hunt, supra note 1 at 331.
264 Tolofson, supra note 1 at 1054.
265 I argue this in Wai, supra note 168.
266 For example, in Wai, supra note 169, I argue that the commercial activity exception to sovereign immunity lacks necessary particularism. This is particularly problematic when, on the one hand, a broad exception to sovereign immunity has been taken with respect to commercial activity and, on the other hand, the immunity rule has been applied broadly with respect to almost all other kinds of activity, including activity involving human rights abuses.
267 For a model of this “pragmatic” approach in the US conflict of laws, see Singer, J., “A Pragmatic Guide to Conflicts” (1990) 70 Boston Univ. L. Rev. 731.Google Scholar
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269 Recherches Internationales Québec v. CambiorInc., [1998] Q.J. No. 2554 (Quebec Superior Court, August 14, 1998) [hereinafter Cambior]. For an extended commentary, see Seck, S., “Environmental Harm in Developing Countries Caused by Subsidiaries of Canadian Mining Corporations: The Interface of Public and Private International Law” (1999) 37 Can. YB. Int’l L. 139.Google Scholar
270 Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December, 1984, 634 F. Supp. 842 (S.D.N.Y. 1986), aff’d 809 F.2d 195 (2d Cir. 1987) [hereinafter Union Carbide]. The Second Circuit ruled that a suit against Union Carbide by Indian victims and the Indian government of the Bhopal chemical disaster was forum non conveniens in the New York courts and should be heard in the courts of India. This conclusion was reached in spite of the submissions of the Indian government who agreed that the suit was better heard in the US court. The court did impose a number of conditions on its stay, including that Union Carbide consent to submit to the broad discovery under the US Federal Rules of Civil Procedure. For critical commentary, see Baxi, U., Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (Delhi and Bombay: Indian Law Institute and N.M. Tripathi, 1986)Google Scholar; Paul, supra note 145 at 61–2.
271 Cambior, supra note 269.
272 I discuss regulatory gaps and regulatory competition as problems of international cooperation in private international law in Wai, mpranote 168 at 250–58.
273 The recent House of Lords decision in Lubbe v. Cape plc, [2000] 4 All E.R. 268 (H.L.), considered forum non conveniens, but in its application permitted South African plaintiffs to continue with their litigation in English courts against an English parent company for personal injuries related to exposure to asbestos. This decision may be an example of greater sensitivity to the particular procedural problems that may impede litigants in the legal systems of some developing countries.
274 Union Carbide, supra note 270.
275 Comity concerns make more sense where governments take a position that domestic processes are sufficient.
276 On the difficult position of developing countries with respect to international legalism in a global context of neoliberalism and neoimperialism, see Wai, supra note 169 at 241–45.
277 Seck, supra note 269.
278 With respect to the complaints concerning Talisman, see, for example, Human Security in Sudan: The Report of a Canadian Assessment Mission, prepared by John Harker for the Minister of Foreign Affairs (Ottawa,January 2000).
279 A signiicant recent example of a related debate in the Canada-US context concerns the willingness of Canadian courts perhaps too readily to “complement, coordinate and where appropriate accommodate the proceedings” of US courts in cross-border insolvencies; see Re Babcock & Wilcox Canada Ltd., (2000) 18 C.B.R. (4th) 157 (Ont. S.C.J. [Commercial List]) at para 9. It evidences the importance of the tetralogy in Canadian law that Justice Farley, the leading judge in Ontario on matters related to cross-border insolvencies, invoked Morguard in his judgment in Babcock and in previous judgments as providing a strong policy support for extending the practice of comity to the international context and to the context of cross-border insolvencies. For critical commentary, see, for example, Ziegel, J., “Corporate Groups and Canada-US Cross-border Insolvencies: ContrastingJudicial Visions” (2000) 25 C.B.R. (4th) 161.Google Scholar
280 See Blom, supra note 28, for a survey of cases.
281 Moses, supra note 238.
282 Castel, supra note 10 at 66.
283 Smith Kline & French Laboratories Ltd. v. Bloch ( 1983), 2 All E.R. 72 at 74 (C.A.).
284 Canadian courts may award exemplary damages in tort law and, more rarely, in contract; see Waddams, S., The Law of Damages (Toronto: Canada Law Book, 1997) at paras. 11.250-11.260.Google Scholar The recent decision of the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 S.C.C. 18, signals that substantial punitive damages may be available, although “very much the exception rather than the rule” (para. 94), in breach of contract cases in Canada. It is interesting that the court considered submissions concerning the excesses of the US experience with punitive damages in the course of its evaluation of what Canadian law on the issue should be (paras. 60–65).
285 The court in Tolofson, supra note 1 at 1059 did not seem to appreciate this; it considered that general convergence in liability principles with respect to guest passenger statutes had diminished public policy problems because only differences in quantum remained. In Kidron v. Grean, (1999) 48 O.R. (3d) 775 (Gen.Div.), leave to appeal refused 48 O.R. (3d) 784, Justice Brennan suggested a more cautious approach to the recognition and enforcement of a California judgment that included a substantial award for emotional distress damages. The judge seemed particularly concerned about the quantum of the damages awarded in comparison to the caps on recovery of such damages in Canada.
286 See Weintraub, supra note 86 at 203–05.
287 Judgment of June 4, 1992, 13 ZIP 1256 (1992), (1993) 32 I.L.M. 1320. See Bungert, H., “Enforcing U.S. Excessive and Punitive Damages Awards in Germany” (1993) 27 Int’l Lawyer 1075 Google Scholar; Hay, P., “The Recognition and Enforcement of American Money-Judgments in Germany — The 1992 Decision of the German Supreme Court” (1992) 40 Am. J. Comp. L. 729 CrossRefGoogle Scholar; Brand, supra note 166 at 608–13.
288 See, for example, An Oregon Partnership, Northcon I v. Yoshitaka Katayama; Mansei KogyoKabushikiKaisha, H.J. ( 1376) 79 [1991], H.T. (760) 250 [1991] (Tokyo District Court, 18 February 1991) reported at (1992) 35Japanese Annual Int’l L. 177; see Brand, supra note 166 at 612.
289 Castel, supra note 10 at 171–74.
290 O’Keefev TheLoewen Group Inc. etal., 91–67–423 (Cir.Ct, Hinds Co., Miss. 1995).
291 Loewen v. United States, supra note 187. The claim was filed under the private-party investor dispute settlement provisions of Section B, Chapter 11 of NAFTA, supra note 187. The substantive claim is based on Articles 1102, 1105, and 1110 of NAFTA. See “NAFTA Panel Expected to be Constituted Soon in Canadian Firm’s $725 Million NAFTA Claim” January 20, 1999, BNA Int’l Trade Reporter 81; Krauss, M., “NAFTA Meets the American Torts Process: O’Keefe v. Loewen” (2000) 9 George Mason. L. Rev. 69.Google Scholar An initial ruling of the panel rejected arguments by the United States on matters of competence and jurisdiction; see The Loewen Group, Inc. and Raymond L. Loewen v. United States of America (ICSID Case No. ARB (AF)/98/3), Decision of the Arbitral Tribunal on Hearing of Respondent’s Objection to Competence and Jurisdiction ( January 5, 2001 ).
292 Securities Exchange Act of 1934, 15 U.S.C. §78 (1934).
293 See, for example, Foreign Extraterritorial Measures Act, supra note 189; Castel et al. , supra note 71 at 645–46.
294 Substantial disagreement about punitive damages is reflected in debates within the United States itself. Weintraub observes that in international negotiations concerning the recognition and enforcement of US judgments, “[d]efense of punitive damages will not be helped by the fact that most states have, by statute or decision, placed limits on punitive awards and that the U.S. Supreme Court has held that a ‘grossly excessive’ award of punitive damages violates due process”; Weintraub, supra note 86 at 182–83 [notes omitted]. The Mississippi judgment against Loewen features prominently as a chapter in a conservative journalist's book severely criticizing the legal system in the United States; Boot, M., Out of Order: Arrogance, Corruption, and Incompetence on the Bench (New York: Basic Books, 1998) at 158–60Google Scholar; see also Krauss, supra note 291.
295 Burley, A-M., “Law among Liberal States: Liberal Internationalism and the Act of State Doctrine” (1992) 92 Columbia L. Rev. 1907 at 1975–85 and 1993.CrossRefGoogle Scholar
296 Unfortunately, some such resistance tends toward equally naive antiinternationalist positions rather than carefully articulated policy analysis and response.
297 See Pue, W., Pepper in Our Eyes: The APEC Affair (Vancouver: UBC Press, 2000).Google Scholar