Strangers in a Strange Land - Transnational Litigation, Foreign Judgment Recognition, and Enforcement in Ontario

Abstract

Well into the new millennium, the landscape of international business commerce continues to change dramatically. As many companies expand into global markets, the extant business reality of prosecuting or defending lawsuits arises from companies relying upon standard or boiler plate contracts or invoices when selling goods and services to customers or buying products from suppliers or third parties. This article discusses transnational contractual and litigation issues in Canada, with specific application to the province of Ontario. This article first addresses, from an Ontario company perspective, the importance of incorporating choice of forum, choice of law, and time of the essence clauses in standard international contracts, with particular reference to the United Nations Convention on Contracts for the International Sale of Goods. The second part draws upon the jurisdictional issues prevailing when foreign defendants are sued in Ontario, including procedural and substantive law considerations. Finally, a discussion of the principles for recognition and enforcement of foreign judgments in Ontario necessarily involves a review of the Supreme Court of Canada's landmark decision in Morguard Investments Ltd. v. de Savoye, and the recently released decision in Beals v. Saldanha. An appreciation of the complexities and subtleties within developing Canadian jurisprudence in the transnational litigation context offers foreign and domestic litigants an opportunity to consider the benefits and drawbacks of litigating in Ontario.

Keywords: International sales, contracts, CISG, Convention, jurisdiction, forum non conveniens

JEL Classification: K12, K33, K41