An Agenda for Jurisdictional Law Reform

• Author: Christopher Ram
• Profession: The author was, at the time of writing, Legal Counsel with Justice Canada
• Pages: 167-188

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seven

An Agenda for Jurisdictional Law Reform

CHRISTOPHER RAM*

A. THE NEED FOR CONSENSUS ON THE NATURE AND

PURPOSE OF JURISDICTIONAL LAW

e previous chapter argued that relying on forum courts to decide when

to extend forum law and assert their own jurisdiction in transnational or

extraterritorial cases inevitably gives rise to pro-forum bias eects that

accumulate over time in the jurisprudence. It further argued that a more

algorithmic framework is needed to rebalance the law and assure that

broader foreign policy and foreign legal and comity factors are better

reected. is chapter discusses dierent perspectives on the nature and

function of jurisdictional law and the need for basic policy consensus, and

then considers some specic law reform proposals.

* e author was, at the time of writing, Legal Counsel with Justice Canada. e

views expressed herein are those of the author personally and are not intended to

reect the views or positions of the Government of Canada or any department or

agency thereof.

 See Chapter  in this volume.

 As in Chapter , references to jurisdiction are only to those based on national

sovereignty and territoriality, not internal powers or limits.

 

168

1) Is Jurisdictional Law Different?

Views dier on whether jurisdictional law is exceptional and how this

interacts with other axes of exceptionality, especially when principles of

constitutional and human rights law are engaged. When exceptionalities

collide, discussions tend to be dominated by substantive arguments, rather

than reconciliation of underlying principles. Constitutional, rule-of-law,

and human rights principles operate across substantive laws and processes

to regulate domestic governance structures and ensure values are applied

consistently. Jurisdictional rules must operate as an outer boundary on all

of these, limiting all of the domestic laws and powers of each state, includ-

ing judicial powers, based on the territorial sovereignty of other states.

e substantive and jurisdictional paradigms are not inconsistent, and

one thesis of this chapter is that each should be interpreted and applied

with this in mind. Human rights principles inuence the meaning of

substantive and procedural laws, jurisdictional principles set outer limits

on the application of domestic laws and powers of domestic institutions,

and constitutional rule of law principles provide a structure by which they

inter-operate. is logically requires not only that human rights principles

be given the constitutional supremacy and generous application of the

Charter and its jurisprudence, but also that limits of territorial jurisdiction

be given supremacy over both. Section () of the Constitution Act, ,

of which the Charter is a part, expressly makes the Act the “supreme law

of Canada,” not the world. By the same logic, the purposive and generous

interpretation needed to construe and apply specic rights within Canada

should not be applied to section  of the Charter to extend those rights

into the sovereign territory of another country.

Kiobel and Hape both distinguished substantive rights from jurisdic-

tional limits. Hape notes that the Charter is supreme within Canada, but

still subject to the same jurisdictional limits as any Canadian law, and

Kiobel restated the idea that US law “governs domestically but does not

rule the world.” is is not always the view in ocial, legal, or popular

 Zachary Clopton, “Replacing the Presumption against Extraterritoriality” ()

: Boston University Law Review .

 Schedule B to the Canada Act,  (UK), , c .

 Kiobel v Royal Dutch Petroleum Co et al,  S Ct  () [Kiobel], and R v Hape,

 SCC  [Hape].

 Hape, ibid at para , and Kiobel, ibid at  quoting Microsoft Corp v AT&T Corp,

 US  () at .