IPIC Submission on the Convention on Recognition and Enforcement of Foreign Judgments by the Hague Conference on Private International Law
We understand, and expect, that if the Convention is ratified and Canada becomes a Contracting State, it will remain necessary to bring proceedings before a court in the enforcing state to consider and approve the recognition and enforcement of the foreign judgment. In other words, the terms of the Convention would not eliminate the step of bringing a proceeding in a Canadian provincial court to recognize and enforce a foreign judgment. However, the terms of the Convention will fetter the Canadian (and foreign) judge’s discretion in determining whether to recognize and enforce the judgment.
Recognition in Canada will most directly affect Canadian businesses operating abroad that have been found liable for intellectual property infringement. Therefore, our overarching concern is to ensure that the Convention provides at least the same level of protection to Canadian individuals and corporations that they now enjoy under international law and local rules and precedent relating to enforcement of foreign judgments. Canadian businesses should also not be negatively affected in comparison with their foreign competitors.
We also understand, and expect, that if the Convention is ratified and Canada becomes a Contracting State, that parties will remain able to request recognition and enforcement of foreign judgments for those matters that are excluded from the Convention. For example, if a foreign judgment is ineligible under Article 5, but otherwise meets the test for recognition and enforcement under Canadian law, proceedings may be brought to enforce it.