Document Type

Article

Publication Date

1971

Source Publication

McGill Law Journal/Revue de Droit de McGill. Volume 17, Number 1 (1971), p. 11-188.

Abstract

Although it is hardly necessary to stress the advantages to international relations and international trade which may result from universal recognition and enforcement of foreign judgments, it appears that the increasing volume of international and inter- provincial trade and business has not been followed by a com- parable development of the facilities granted to creditors to recover on their claims. Each country has a tendency to protect itself against the intrusion of foreign judgments, to the prejudice of creditors in whose favour the judgments lie. The principle of territorial sovereignty is said to prevent foreign judgments from having any direct operation as such in any of the Canadian provinces. This attitude is principally due to a lack of confidence in other legal systems. It may be difficult for the enforcing court to ascertain the independence and legal ability of the foreign judge, and to assess the reliability of the foreign legal system. This difficulty is reinforced where the countries involved adhere to fundamentally different legal systems and thus may have different concepts of public policy and due process. To admit the principle of universal recognition and enforcement of foreign judgments would result in recognizing in a foreign judge a power superior in many instances to that possessed by the local legislature. For these reasons adequate safeguards must be provided. On the other hand a foreign judgment is a fact which cannot be ignored. This is why Canadian courts have had to recognize and enforce foreign judgments provided they meet certain conditions.

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