Exclusion of Foreign Law

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 29-43

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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 tak-

ing of jurisdiction over a dispute, when it applies foreign law to re-

solve 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

exclusion 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

refuse to recogni ze or enforce the judgment of a foreign court. In decid-

ing a case it can refuse to apply foreign legal rules that are, under the

relevant 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.