Exclusion of Foreign Law

AuthorStephen G.A. Pitel; Nicholas S. Rafferty
Pages29-44
CHAPTER
3
EXCLUSION
OF
FOREIGN
LAW
A.
INTRODUCTION
Canadian
private
international
law
gives
considerable
effect
to
foreign
law.
It
does
this,
for
example,
when
it
respects
a
foreign
court
s
taking
of
jurisdiction
over
a
dispute,
when
it
applies
foreign
law
to
resolve
a
dispute
in
the
forum,
and
when
it
recognizes
and
enforces
a
foreign
judgment
or
arbitral
award.
However,
there
are
situations
in
which
Canadian
courts
will
refuse
to
give
effect
to
foreign
law
and
they
will
exclude
that
law
from
their
analysis.
Some
of
these
situations
will
be
discussed
throughout
this
book,
such
as
in
Chapter
8
when
looking
at
reasons
why
a
court
might
not
recognize
a
foreign
judgment
and
in
Chapter
14
when
looking
at
mandatory
rules
in
choice
of
law
for
contract.
However,
some
of
the
fundamental
principles
relating
to
ex
clusion
of
foreign
law
cut
across
the
whole
subject,
so
it
is
useful
to
identify
them
at
the
outset.
A
court
can
exclude
foreign
law
in
several
ways.
As
noted,
it
can
re
fuse
to
recognize
or
enforce
the
judgment
of
a
foreign
court.
In
deciding
a
case
it
can
refuse
to
apply
foreign
legal
rules
that
are,
under
the
rel
evant
choice
of
law
rules,
otherwise
applicable.
It
can
even
refuse
to
give
effect
to
a
jurisdiction
agreement
requiring
litigation
in
another
country.
These
are
all
different
areas
of
the
conflict
of
laws,
but
the
principles
in
this
chapter
can
justify
the
exclusion
of
foreign
law
in
each
of
them.
This
chapter
highlights
the
tension
between
comity
being
a
good
neighbour
in
the
international
community
and
the
protection
29
30
CONFLICT
OF
LAWS
of
domestic
interests.
These
exclusions
allow
the
court
to
disregard
foreign
law
and
instead
apply
the
law
of
the
forum.
The
broader
their
scope,
the
more
insular
and
chauvinistic
the
courts
can
become.
How
ever,
as
comity
has
taken
on
increased
importance,
the
scope
of
these
exclusions
has
diminished.
They
are
particularly
narrow
in
the
inter
provincial
context.
But
the
debate
about
whether
the
balance
has
been
struck
in
the
right
place
is
far
from
resolved.
The
effect
of
excluding
foreign
law
is
clearer
in
some
cases
than
in
others.
In
the
recognition
and
enforcement
context,
the
effect
is
straightforward:
the
forum
refuses
to
give
any
effect
to
the
foreign
judgment.
Similarly,
if
a
plaintiff
advances
a
claim
under
a
foreign
law
that
the
forum
excludes,
the
claim
fails.
In
a
more
complex
case,
the
claim
might
be
governed
by
a
foreign
applicable
law,
but
only
one
as
pect
of
that
law
causes
the
forum
court
concern.
Here
the
approach
to
exclusion
is
less
clear.
The
forum
could
exclude
the
entirety
of
the
foreign
law
and
apply
the
law
of
the
forum
instead.
This
response
is
too
extreme.
Alternatively,
the
forum
could
exclude
only
the
specific
foreign
legal
rule
in
question
and
resolve
the
dispute
by
applying
the
balance
of
the
foreign
law.
This
is
viable
when
the
foreign
law
provides
a
coherent
response
without
the
specific
provision.
For
example,
if
the
forum
excludes
a
foreign
law
that
prevents
a
gratuitous
passenger
in
volved
in
a
car
accident
from
suing
the
driver
in
tort,
it
can
still
apply
the
rest
of
the
foreign
tort
law
to
resolve
the
dispute.
In
the
further
alternative,
the
forum
could
apply
a
combination
of
foreign
and
forum
law,
using
the
latter
in
place
of
the
specific
foreign
rule
being
excluded.
1
B.
PUBLIC
POLICY
A
central
basis
for
excluding
foreign
law
is
that
the
foreign
law
conflicts
with
the
forum
s
public
policy.
This
basis
is
not
established
simply
be
cause
a
foreign
law
or
decision
has
a
different
policy
basis
than
that
of
the
forum.
Canadian
courts
are
quite
willing
to
apply
foreign
laws
that
are
very
different
from
those
in
effect
where
those
courts
sit.
2
For
this
exclusion
to
apply,
the
foreign
law
must
violate
the
essential
morality
or
fundamental
values
of
the
forum.
3
The
court
would,
for
example,
1
For
additional
discussion,
see
the
analysis
of
mandatory
rules
in
choice
of
law
for
contract
in
Chapter
14.
2
Boardwalk
Regency
Corp
v
Maalouf
(1992),
6
OR
(3d)
737
at
748
(CA).
3
Ibid
at
743;
Society
of
Lloyd
s
v
Meinzer
(2001),
55
OR
(3d)
688
at
para
48
(CA)
[Society
of
Lloyd's];
Dash
224,
LLC
v
Vector
Aerospace
Engine
Services-Atlantic
Inc,
2015
PESC
27
at
paras
32-33
[Dash
224].
See
also
Loucks
v
Standard
Oil
Co
of
New
York,
120
NE
198
at
202
(NY
1918).

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