¹ Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 [hereinafter Morguard]; Amchem ProductsInc. v. British Columbia (WCB), [1993] 1 S.C.R. 897 [hereinafter Amchem]; Hunt v. T & Nplc, [1993] 4 S.C.R. 289 [hereinafter Hunt]; and Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 [hereinafter Tolofson].

² Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

³ P. North, “Reform but Not Revolution” (1990) 220 Rec. des Cours 1.

⁴ For a critical assessment of Canadian policy reform instituted “in the name of globalization,” see Laxer, J. False God: How the Globalization Myth Has Imperiled Canada (Toronto: Lester, 1993) at 3.Google Scholar

⁵ See, for example, Edinger, E. “The Constitutionalization of the Conflict of Laws” (1995) 25 Can. Bus. L.J. 38.Google Scholar

⁶ For a model examination of the crucial role of the European Court of Justice inactively constructing the process of European integration, see Weiler, J. H. H. “The Transformation of Europe” (1991 ) 100 Yale L. J. 2403.CrossRefGoogle Scholar I explore the activist role of the Supreme Court of Canada under the leadership of Justice Gérard La Forest in internationalist reform in private international law as well as in other areas of Canadian law in Wai, R. “Justice Gérard La Forest and the Internationalist Turn in Canadian Jurisprudence,” in Johnson, R. and McEvoy, J. eds., Gérard V. La Forest at the Supreme Court of Canada 1985-1997 (Winnipeg: Supreme Court of Canada Historical Society by the Canadian Legal History Project, 2000) 421.Google Scholar

⁷ The connection of the judgments in private international law to decisions in other areas of Canadian law is explored in Wai, supra note 6.

⁸ Legal studies of globalization can offer helpful detail to more amorphous and abstract studies of globalization and internationalization. From this perspective, this article is an effort to provide a “thick” description of a particular episode in the processes of globalization and internationalization, showing one venue where that process is relected and instituted, and showing as well the connection of this episode to some of the larger social contexts and policy issues at stake in globalization. This is the approach invoked by many as the way forward for studies of globalization; see, for example, Cheah, P. and Robbins, B. eds., Cosmopolitics: Thinking and Feeling beyond the Nation (Minneapolis: University of Minnesota Press, 1998).Google Scholar The concept of thick description is associated with the cultural anthropologist Clifford Geertz; see, for example, Geertz, C. Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983).Google Scholar

⁹ A sense of the peculiar opportunity offered to study both the ideational and material aspects of globalization and its construction might explain the interest in fields related to private international law and international business law recently evidenced by leading figures from other disciplines who specialize in globalization such as the sociologists Pierre Bourdieu and Yves Dezalay (see, for example, Bourdieu, P. “Foreword,” in Dezalay, Y. and Garth, B. eds., Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago: Chicago University Press, 1996)),Google Scholar the systems theorist Gunther Teubner (see, for example, Teubner, G. ed., Global Law without a State (Aldershot, UK: Dartmouth, 1997))Google Scholar, and the political economist Saskia Sassen (see, for example, Sassen, S. Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996)Google Scholar; Sassen, S. Globalization and Its Discontents: Essays on the New Mobility ofPeople and Money (New York: New Press, 1998)).Google Scholar

¹⁰ See, for example, Castel, J-G. Canadian Conflict of Laws, 4th ed. (Toronto: Butter-worths, 1997) c. 2Google Scholar; Baer, M. et al., eds., Private International Law in Common Law Canada (Toronto: Emond Montgomery, 1997) at 4.Google Scholar

¹¹ All of these cases are cited in note 1.

¹² This is admirably done in a number of case comments and articles, some of which are referred to in the notes following; more generally, see Castel, supra note 10, especially c. 2.

¹³ Morguard, supra note 1 . For case commentary, see “Symposium: Recognition of Extraprovincial and Foreign Judgments” (1993) 22 Can. Bus. L. J. 1; Blom, J. “Conflict of Laws — Enforcement of Extraprovincial Default Judgments — Real and Substantial Connection: Morguard Investments Ltd. v. De Savoye ” (1991) 70 Can. Bar Rev. 733 Google Scholar; Glenn, P. “Foreign Judgments, the Common Law and the Constitution: De Savoyev. MorguardInvestments Ltd.” (1992) 37 McGill L. J. 537.Google Scholar

¹⁴ Morguard, supra note 1 at 1104–10.

¹⁵ The uncertainty generated and the lowered standard meant that it would be very difficult for counsel to advise a client not to defend abroad. Moreover, once defence was begun, it is arguable that the party could be said to have voluntarily submitted. See Blom, supra note 13. The United States faced a similar situation at the International Court of Justice [hereinafter ICJ] in Military and Paramilitary Activities in and against Nicaragua, [ 1986] I.C.J. Rep. 14. The United States, by arguing on the jurisdiction point, was taken by some of the judges to have voluntarily submitted on the merits. This questionable interpretation of the nature of ICJ jurisdiction has been severely criticized: see, for example, Reisman, M. Systems of Control in International Adjudication and Arbitration (Durham, NC: Duke University Press, 1992) c. 2.Google Scholar

¹⁶ See “Symposium: Recognition of Extraprovincial and Foreign Judgments,” supra note 13; Sullivan, J. “The Enforcement of Foreign Judgments in B.C. — Ten Years after Morguard” (2001) 59 The Advocate 399.Google Scholar

¹⁷ For example, in Amchem, supra note 1 at 913–14; Hunt, supra note 1 at 321–28; Tolofson, supra note 1 at 1048–49.

¹⁸ Morguard, supra note 1 at 1095.

¹⁹ Ibid. at 1095–96.

²⁰ Ibid. at 1098.

²¹ Ibid. at 1108–09. For a cautious critique of some ambiguities of this approach, see Blom, supra note 13.

²² Castel, supra note 10 at 44.

²³ McEvoy, J. “Federalism, Territorialism and Justice La Forest,” in Johnson, and McEvoy, , supra note 6 at 345.Google Scholar

²⁴ Morguard, supra note 1 at 1099. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

²⁵ Scholars of Canadian constitutional law and conflict of laws had been speculating on this possibility in the years preceeding Morguard. In particular, see Swan, J. “The Canadian Constitution, Federalism and the Conlict of Laws” (1985) 63 Can. Bar Rev. 271 Google Scholar and Black, V. “Enforcement of Judgments and the Conflict of Laws” (1989) 9 Oxford J. Leg. Studies 547,CrossRefGoogle Scholar cited by the court in Morguard, supra note 1 at 1094.

²⁶ Article IV. 1 of the US constitution provides that “[f]ull faith and Credit shall be given in each State to the public Acts, Records and Judicial Proceedings of every other State.”

²⁷ See Blom, supra note 13.

²⁸ Lower courts have subsequently applied Morguard with respect to non-Canadian judgments; see Blom, J. “The Enforcement of Foreign Judgments: Morguard Goes Forth into the World” (1997) 28 Can. Bus. L. J. 373.Google Scholar

²⁹ Amchem, supra note 1. For commentary, see Edinger, E. “Conflict of Laws — Discretionary Principles — Forum Non Conveniens — Anti-Suit Injunctions: Amchem Products Inc. v. British Columbia (Workers Compensation Board)” (1993) 72 Can. Bar Rev. 366.Google Scholar

³⁰ In Canada, litigation and legislation related to asbestos has been the source of many leading decisions testing the limits of the rules of civil procedure, including the conlict of laws. The Supreme Court of Canada had heard only a few years earlier an asbestos litigation case on the standard for dismissal of an action for failure to state a cause of action; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Hunt, supra note 1 arose out of the same asbestos litigation. Asbestos even plays a role in Canadian litigiousness at the interstate level of the World Trade Organization [hereinafter WTO]; see, for example, European Communities — Measures Affecting Asbestos and Asbestos-Containing Products, 18 September 2000, Doc. WT/DS135/R (Panel Report), 12 March 2001, Doc. WT/DS135/AB/R (Appellate Body Report), in which Canada unsuccessfully challenged French restrictions on the import of asbestos and asbestos products.

³¹ Laker Airways v. Sabena, Belgian World Airlines, 731 F. 2d 909 ( 1984). For a description of the Laker Airways litigation, see Collins, L. Essays in International Litigation and the Conlict of Laws (Oxford: Oxford University Press, 1994) at 110–16.Google Scholar The reaction of the US court in the Laker Airways litigation is mentioned in Amchem, supra note 1 at 913.

³² Amchem, supra note 1 at 905–08.

³³ Ibid. at 932.

³⁴ Ibid., quoting from SNI Aérospatiale v. Lee Kui Jak, [1987] 1 A.C. 871 (H.L) [hereinafter Aérospatiale].

³⁵ Ibid. at 934.

³⁶ Ibid. at 914–15.

³⁷ Ibid. at 915.

³⁸ Ibid. at 921.

³⁹ Antares Shipping Corp. v. The Ship “Capricorn,” [1977] 2 S.C.R. 422.

⁴⁰ Spiliada Maritime Corp. v. Cansulex Ltd., [1987] 1 A.C. 460 (H.L.) [hereinafter Spiliada]; Aérospatiale, supra note 34.

⁴¹ See La Forest, G. V. “The Use of International and Foreign Material in the Supreme Court of Canada,” in Proceedings of the 1988 Conference of the Canadian Council of International Law (Ottawa: Canadian Council on International Law, 1988) 230.Google Scholar

⁴² See Spiliada, supra note 40 at 485–88.

⁴³ See Silberman, L. “Developments in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on Reform and a Proposal for a Uniform Standard” (1993) 28 Tex. Int’l L. J. 501.Google Scholar

⁴⁴ See the discussion of the lower court judgments, Amchem, supra note 1 at 910-11.

⁴⁵ The willingness of the Canadian courts to accept forum non conveniens and to restrict anti-suit injunctions without seeking reciprocity generated favourable, if surprised, commentary in the United States; see, for example, Lowenfeld, A. “Forum Shopping, Antisuit Injunctions, Negative Declarations, and Related Tools of International Litigation” (1997) 91 Am. J. Int’l L. 314 at 323–24.CrossRefGoogle Scholar

⁴⁶ Hunt, supra note 1 . For commentary, see Black, V. and MacKay, W. “Constitutional Alchemy in the Supreme Court: Hunt v. T & Nplc” (1994) 5 N.J.C.L. 79 Google Scholar; Walsh, C. “Conlict of Laws — Enforcement of Extra Provincial Judgments and In Personam Jurisdiction of Canadian Courts: Hunt v. T & Nplc” (1994) 73 Can. Bar Rev. 394 Google Scholar; Edinger, supra note 5; Wisner, R. “Uniformity, Diversity and Provincial Extraterritoriality” (1995) 40 McGill L. J. 759.Google Scholar

⁴⁷ Quebec Business Concerns Records Act, R.S.Q., c. D-12.

⁴⁸ Hunt, supra note 1 at 327.

⁴⁹ Morguard, supra note 1 at 1099, cited in Hunt, supra note 1 at 322.

⁵⁰ Hunt, supra note 1 at 322.

⁵¹ Ibid. at 330.

⁵² Ibid. at 331.

⁵³ Tolofson, supra note 1. For commentary, see Castel, J.-G., “Back to the Future! Is the New ‘Rigid’ Choice of Law Rule for Interprovincial Torts Constitutionally Mandated?” (1995) 33 Osgoode Hall L. J. 35 Google Scholar; Kincaid, P. “Jensen v. Tolofson and the Revolution in Tort Choice of Law” (1995) 74 Can. Bar Rev. 537.Google Scholar

⁵⁴ The tort/contract distinction can be overstated. Many disputes involve overlapping claims in contract and tort. Moreover, some tort claims involve situations with a transactional character where there are possibilities of bilateral bargaining and negotiation; see, for example, Whincop, M. and Keyes, M. “The Market Tort in Private International Law” (1999) 19 Northwestern J. Int’l L. and Bus. 215.Google Scholar

⁵⁵ It is therefore not surprising that choice of law in tort was central to the development of the “governmental-interest analysis” approach in the United States; see, for example, Babcock v. Jackson, 12 N.Y 2d 473 ( 1963); Currie, B. Selected Essays on the Conflict of Laws (Durham, NC: Duke University Press, 1963)Google Scholar; Brilmayer, L. Conflict ofLaws, 2nd ed. (Boston: Little, Brown, 1995) c. 2.Google Scholar

⁵⁶ Tolofson, supra note 1 at 1046-47. For commentary, see, for example, Guthrie, N. “‘A Good Place to Shop’: Choice of Forum and the Conflict of Laws” (1995) 27 Ottawa L. Rev. 201.Google Scholar

⁵⁷ In particular, the minority concurring opinion of ChiefJustice Mason in Breav-ingtonv. Godleman, (1988), 80 A.L.R. 362 (Australia H.C.). The ratio of this case is almost unascertainable given the multiple judgments pulling in various directions. It is interesting that an equally muddy decision is also a leading case in English choice of law in tort; Boys v. Chaplin, [1971] A.C. 356 (H.L.). For a discussion of this case and its background in English choice of law in tort, see Morris, J. The Conflict of Laws, 4th ed. by McClean, J. D. (London: Sweet and Maxwell, 1993) at 280–91.Google Scholar

⁵⁸ See, for example, Castel, supra note 53.

⁵⁹ Morris, J. “The Proper Law of A Tort” (1951) 64 Harv. L. Rev. 881.CrossRefGoogle Scholar

⁶⁰ Part III of the Private International Law (Miscellaneous Provisions) Act (U.K.) 1995. For a discussion of the Law Commission work that informed the new laws, see North, P. Essays in Private International Law (Oxford: Clarendon Press 1993),c.4.Google Scholar

⁶¹ Tolofson, supra note 1 at 1049.

⁶² Ibid.

⁶³ Ibid. at 1049–50.

⁶⁴ Ibid. at 1050.

⁶⁵ Ibid. at 1051.

⁶⁶ Ibid. at 1058.

⁶⁷ Ibid. at 1059.

⁶⁸ There are, in addition, the private international law provisions of specialized conventions such as the Convention for the Unification of Certain Rules Relating to International Carriage by Air, October 12, 1929, 137 L.N.T.S. 13, Can. T.S. 1947 No. 15, as amended by the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, September 28, 1955, 478 U.N.T.S. 371, Can. T.S. 1964, No. 29.

⁶⁹ Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, November 15, 1965, 658 U.N.T.S. 163; Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, March 18, 1970, 847 U.N.T.S. 241. See generally, Droz, G. “A Comment on the Role of the Hague Conference on Private International Law” (1994) 57 Law and Contemp. Probs. 3.CrossRefGoogle Scholar

⁷⁰ For a sense of this hopeful cosmopolitan and internationalist sentiment, see, for example, T.M.C. Asser Institute, The Influence of the Hague Conference on Private International Law: Selected Essays to Celebrate the 100th Anniversary of the Hague Conference on Private International Law (Dordrecht: Martinus Nijhoff, 1993); Hague Conference on Private International Law, Proceedings of the Seventeenth Session, Tome 1 — Second Part, “Centenary” (La Haye: SDU Publishers, 1994–95).

⁷¹ Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 38, Can. T.S. 1986 No. 43 [hereinafter New York Convention]. See Castel, J.-G. et al., eds., The Canadian Law and Practice of International Trade with Particular Emphasis on Export and Import of Goods and Services, 2nd ed. (Toronto: Emond Montgomery, 1997) at 724–25.Google Scholar

⁷² See Casey, J. B. International and Domestic Commercial Arbitration (Scarborough, ON: Carswell, 1992) (updated 1999), c. 2, for a review of the federal and provincial legislation.Google Scholar

⁷³ United Nations Commission on International Trade Law Model Law on International Commercial Arbitration, June 21, 1985, (1985) 24 I.L.M. 1302. For commentary on relevant Canadian law and practice, see Castel et al., supra note 71 at c. 21.

⁷⁴ Dezalay and Garth, supra note 9, provide a sophisticated sociological analysis of the establishment of international commercial arbitration in a number of different jurisdictions.

⁷⁵ The failure to fully attend to the role of national courts is one of the principal weaknesses of the account by Dezalay and Garth, supra note 9, of the establishment of the arbitration regime.

⁷⁶ For example, see the review of the legislative provisions and judicial interpretation related to international commercial arbitration in Pepper, R. “Why Arbitrate?: Ontario’s Recent Experience with Commercial Arbitration” (1998) 36 Osgoode Hall L. J. 807 Google Scholar; Castel et al., supra note 71 at c. 21; Quintette Coal Ltd. v. Nippon Steel Corp., [1991] 1 W.W.R. 219 (B.C.C.A.), leave to appeal to S.C.C. refused [ 1990] 2 S.C.R. x.

⁷⁷ Burlington Northern Railroad Co. v. Canadian National Railway Co., [1997] 1 S.C.R. 5.

⁷⁸ Burlington Northern Railroad Co. v. Canadian National Railway ( 1995), 7 B.C.L.R. (3d) 80 at 94 (B.C.C.A.), quoting from Boart Weden AB v. NYA Stomnes AB (1988), 41 B.L.R. 295 at 302–03 (Ont. H.C.).

⁷⁹ Convention on the Civil Aspects of International Child Abduction, October 25, 1980, Can. T.S. 1983 No. 35. This convention was also considered in W.(V.) v. S.(D.), [1996] 2 S.C.R. 108; and briefly in Gordon v. Goertz, [1996] 2 S.C.R. 27 at 76–77, L’Heureux-Dubé J.

⁸⁰ Thomson v. Thomson, [1994] 3 S.C.R. 551 at 578–80, La Forest J. [hereinafter Thomson]. For commentary, see Black, V. and Jones, C. Case Comment (1994) 12 C.F.L.Q. 321.Google Scholar

⁸¹ Justices Claire L’Heureux-Dubé and Beverley McLachlin dissented on this point.

⁸² Thomson, supra note 80 at 605, La Forest J.

⁸³ Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, September 27, 1968, 1262 U.N.T.S. 1653 [hereinafter Brussels Convention]; Convention on Jurisdiction and the Enforcement of Judg-ments in Civil and Commercial Matters, September 16, 1988, 1659 U.N.T.S. 13 [hereinafter Lugano Convention]; Convention on the Law Applicable to Contractual Obligations, June 19, 1980, 1605 U.N.T.S. 59 [hereinafter Rome Convention].

⁸⁴ For a useful discussion of the Hague Conference on Private International Law negotiations concerning a treaty for recognition and enforcement of judgments, see “Symposium Enforcing Judgments Abroad: The Global Challenge” (1998) 24 Brooklyn J. Int’l L. 1; A. von Mehren, "Recognition and Enforcement of Foreign Judgments: A New Approach For the Hague Conference?” ( 1994) 57 Law and Contemp. Probs. 271.

⁸⁵ Black, V. “Commodifying Justice for Global Free Trade: The Proposed Hague Judgments Convention” (2000) 38 Osgoode Hall L. J. 267.Google Scholar The Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters was adopted by the Special Commission of the Hague Conference on October 30, 1999; text can be found online at <http://www.hcch.net/e/ conventions/draft36e.html> (last modified: October 30, 1999).

⁸⁶ Weintraub, R. “How Substantial Is Our Need for a Judgments-Recognition Convention and What Should We Bargain Away to Get It?” (1998) 24 Brooklyn J. Int’l L. 167.Google Scholar

⁸⁷ Morguard, supra note 1 at 1098 and 1100.

⁸⁸ See, for example, Bayefsky, A. International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992)Google Scholar; Slaughter, A.-M. “A Typology of Transjudicial Communication” (1994) 29 U. Richmond L. Rev. 99.Google Scholar The judges of the court frequently discuss this subject in speeches and articles; for example, La Forest, supra note 41; La Forest, G. V. “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 Can. Y.B. Int’l L. 89 at 97–100.Google Scholar Given the limited range of “appropriate” topics for judicial speeches, the prominence of this subject is suggestive of the consensus behind internationalism in Canada.

⁸⁹ Toope, S. “Canada and International Law,” in The Impact of International Law on the Practice ofLaw in Canada (The Hague: Kluwer, 1999) 33 at 34–38.Google Scholar

⁹⁰ For a related analysis, see Arthurs, H. “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields” (1998) 12 Can. J. Law and Soc. 219.CrossRefGoogle Scholar

⁹¹ This trope of reform is a constant in international law; see Kennedy, D. “A New World Order: Yesterday, Today and Tomorrow”(1994) 4 Transnat’l L. and Contemp. Probs. 329.Google Scholar

⁹² The current situation in Britain is a good example of the continuing relevance of both traditions — international and municipal. One instance of the tensions generated by efforts to incorporate international conventions into a traditional common law subject are recent editions of the leading UK treatise; Collins, L. ed., Dicey & Morris on the Conflict of Laws, 12th ed. (London: Sweet and Maxwell, 1993)Google Scholar [hereinafter Dicey & Morris]. On this tension, see Wai, R. “Book Review of Dicey & Morris on the Conflict of Laws, edited by L. Collins”(1997) 8 Eur. J. Int’l L. 386.CrossRefGoogle Scholar

⁹³ See, for example, Kennedy, D. “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940” (1980) 3 Research in Law and Society.Google Scholar

⁹⁴ See, for example, Korhonen, O. International Law Situated: An Analysis of the Lawyer’s Stance towards Culture, History and Community (The Hague: Kluwer, 2000), c. 2.Google Scholar

⁹⁵ Kennedy, D. “The Disciplines of International Law and Policy” (1999) 12 Leiden J. Int’l L. 9 at 23.CrossRefGoogle Scholar

⁹⁶ See, for example, “The Academic as Cosmopolite: Legal Visions of International Governance in the Twentieth Century,” in On Violence, Money, Power and Culture: Reviewing the Internationalist Legacy: Proceedings of the 93rd Annual Meeting (Washington DC: American Society of International Law, 2000), 325–31. In previous work, I attempted to provide some focus for this important aspect of international law by tracking the inluence of the policy vision of the international system in the work and background of Justice La Forest, the leading judge on international law matters at the Supreme Court of Canada; Wai, supra note 6. Justice La Forest was the leading igure in the tetralogy as well. He wrote the majority judgment in three of the cases and was on the panel of ive that decided the fourth. In the Amchem case, Justice Sopinka identiies his judgment as being consistent with the judgment and approach in Morguard; and in the later Hunt and Tolofson judgments, Justice La Forest in turn interprets the judgment in Amchem to be consistent with, and indeed an integrated component of, his vision for private international law in Canada.

⁹⁷ Schachter, O. “The Invisible College of International Lawyers” (1977) 72 Northwestern U. L. Rev. 217.Google Scholar

⁹⁸ Nathaniel Berman pioneered this approach in his studies of the connections between the international law of the inter-war period and concurrent ideas of modernism in culture and politics. See, for example, Berman, N. “Modernism, Nationalism, and the Rhetoric of Reconstruction” (1992) 4 Yale J. L. and Humanities 351 Google Scholar; Berman, N. “’But the Alternative is Despair’: European Nationalism and the Modernist Renewal of International Law” (1993) 106 Harv. L. Rev. 1792.CrossRefGoogle Scholar

⁹⁹ Koskenniemi, M. “Lauterpacht: The Victorian Tradition in International Law” (1997) 8 European J. Int’l L. 215.CrossRefGoogle Scholar

¹⁰⁰ Ibid. at 216.

¹⁰¹ Ibid. at 262.

¹⁰² Ibid. at 228–33.

¹⁰³ Kennedy, supra note 95.

¹⁰⁴ Kennedy, D. “The International Style in Postwar Law and Policy” (1994) Utah L. Rev. 7 at 28–29.Google Scholar

¹⁰⁵ Ibid. at 13.

¹⁰⁶ Ibid. at 29.

¹⁰⁷ Ibid. at 13.

¹⁰⁸ The only two conventions related to commercial matters that have been widely accepted concern relatively minor subjects: see discussion in note 69.

¹⁰⁹ See von Mehren, supra note 84.

¹¹⁰ Black, supra note 85, observes that representation at these meetings is shifting from the grand old men of private international law to international trade diplomats. The latter may be more interested in the give-and-take of international negotiations than the search for common principles or issues of justice of older unification projects.

¹¹¹ See, for example, Franck, T. “Clan and Superclan: Loyalty, Identity and Community in Law and Practice” (1996) 90 Am. J. Int’l L. 359.CrossRefGoogle Scholar

¹¹² Kennedy, supra note 95.

¹¹³ Ibid. at 17–29.

¹¹⁴ For a critical commentary on the sociology of a legal profession that has diminished ties to Canada, see Arthurs, supra note 90.

¹¹⁵ See Hogg, P. Constitutional Law of Canada, 4th ed. (Toronto: Carswell, 1997) at section 8.2.Google Scholar

¹¹⁶ For example, fourteen of the fifty-two full-time faculty at Osgoode Hall Law School in Toronto in the 1997–98 academic year received their legal training entirely outside of Canada. These included Peter Hogg, the current dean of the school and the author of the leading treatise on Canadian constitutional law, who is originally from New Zealand and was educated there and in Australia. In addition, forty-ive of the ifty-two full-time faculty had at least one university degree from a non-Canadian university; Osgoode Hall Law School of York University 1997–1998 Calendar at 11–12.

¹¹⁷ See, generally,Johnson and McEvoy, supra note 6.

¹¹⁸ La Forest, G. V., Extradition to and from Canada (New Orleans: Hauser Press, 1961).Google Scholar The most recent edition is edited by La Forest, Anne Warner La Forest’s Extradition to and from Canada, 3rd ed. (Aurora, ON: Canada Law Books, 1991).Google Scholar Justice La Forest was the leading authority at the court on extradition, and he wrote the court’s judgments in a series of significant extradition cases; for example, Canada v. Schmidt, [1987] 1 S.C.R. 500; McVey (Re); McVey v. United States, [1992] 3 S.C.R. 475; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 [hereinafter Kindler]; Reference Re NgExtradition (Can.), [1991] 2 S.C.R. 858 [hereinafter Re Ng Extradition]. These cases offer an interesting parallel to the private international law judgments; see Wai, supra note 6.

¹¹⁹ It is interesting to note the change in Justice Louise Arbour's approach to international matters as she moved from being a leading judge of Canadian criminal law to being the chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia. As a domestic judge, Justice Arbour was a strong defender of the rights of the accused. For example, in the decision of the Ontario Court of Appeal in R. v. Finta (1992), 92 D.L.R. 4th 1, she sided with a three-justice majority, which acquitted the accused war criminal. The failure of the appeal of that judgment at a deeply divided Supreme Court of Canada effectively emasculated Canadian domestic prosecution of accused war criminals from the Second World War; R v. Finta, [1994] 1 S.C.R. 701. As chief prosecutor, the much less settled terrain of the war crimes prosecutions led to her development and advocacy of tools such as sealed indictments that it seems unlikely she would have accepted in a domestic context. Her return to Canada in 1999 as a member of the Supreme Court of Canada may see the pendulum switch back, as she may become a leading igure in a return to emphasis on underlying domestic values. For example, the Supreme Court of Canada effectively overruled Kindler and Re NgExtradition, supra note 118, in finding that the Canadian Charter of Rights and Freedoms did not permit extradition of Canadian suspects to a US jurisdiction without assurances that they would not face the death penalty; United States v. Burns, [2001] 1 S.C.R. 283. This is a dramatic change and reflects a quite different conception of international criminal matters than that which the court, under Justice La Forest's lead, had been pursuing just one decade earlier; see Wai, supra note 6; Morgan, E. “In the Penal Colony: Internationalism and the Canadian Constitution” (1999) 49 U.T.L.J. 447.CrossRefGoogle Scholar

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¹²¹ Slaughter, supra note 120 at 188–89.

¹²² La Forest, G. V. “The Use of American Precedent in Canadian Courts” (1994) 46 Maine L. Rev. 211.Google Scholar

¹²³ See, for example, Bayefsky, supra note 88; La Forest, supra note 41.

¹²⁴ See Toope, supra note 89.

¹²⁵ Morguard, supra note 1 at 1096, 1098, and 1100.

¹²⁶ Amchem, supra note 1 at 922-25.

¹²⁷ For example, the decision of the US Supreme Court in Mitsubishi Motors Corp. v. Soler-Chrysler Plymouth Inc., 473 U.S. 614 (1985) [hereinafter Mitsubishi Motors].

¹²⁸ See La Forest, supra note 122 at 218-20.

¹²⁹ See Blackmun, H. “The Supreme Court and the Law of Nations” (1994) 104 Yale L. J. 39.CrossRefGoogle Scholar For a critique of the common perception that US courts are xenophobic, see Clermont, K. and Eisenberg, T. “Commentary: Xenophilia in American Courts” (1996) 109 Harv. L. Rev. 1120.CrossRefGoogle Scholar

¹³⁰ See, for example, Innis, H. The Fur Trade in Canada (New Haven: Yale University Press, 1930)Google Scholar; Innis, H. Essays in Canadian Economic History (Toronto: University of Toronto Press, 1956)Google Scholar; Naylor, R. Canada in the European Age 1453-1919 (Vancouver: New Star Books, 1987)Google Scholar; Nossal, K. R. The Politics of Canadian Foreign Policy, 3d ed., (Scarborough, ON: Prentice Hall, 1997) at 29–31.Google Scholar

¹³¹ See Holmes, J. The Better Part of Valour: Essays on Canadian Diplomacy (Toronto: McClelland and Stewart, 1970)Google Scholar; for a skeptical view, see Nossal, supra note 130 at 57.

¹³² See, for example, Kymlicka, W. Multicultural Citizenship (Oxford: Clarendon Press, 1995)Google Scholar; Taylor, C. “The Politics of Recognition,” in Gutmann, A. ed., Multiculturalism (Princeton, N.J.: Princeton University Press, 1994)Google Scholar; Taylor, C. Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism (Montreal: McGill-Queen’s University Press, 1993).Google Scholar

¹³³ See, for example, Macdonald, R. St. J. Morris, G. and Johnston, D. “Canadian Approaches to International Law,” in Macdonald, R. St. J. Morris, G. and Johnston, D. eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974) 940 at 950–54.Google Scholar Canadian lawyers have been prominent in international institutions; for example, John Humphrey's role in the first years of the United Nations. More recently, Cana-dians have figured prominently in the operation of the war crimes tribunals for Rwanda and the Former Yugoslavia; see, for example, Knox, P. “Canadian Key Players at Hague Tribunal,” Globe and Mail (July 17, 2001), A10.Google Scholar

¹³⁴ Kennedy, supra note 95 at 23.

¹³⁵ See, for example, Weiler, supra note 6.

¹³⁶ Kennedy, supra note 104 at 13.

¹³⁷ Each of these policy objectives is discussed in detail in Wai, R. Commerce, Cooperation, Cosmopolitanism: Private International Law and the Public Policy Structure of Internationalism (S.J.D. dissertation, Harvard Law School, 2000) (on file at Harvard Law School Library).Google Scholar

¹³⁸ I track these arguments in John Stuart Mill’s theories of international politics, international economics, and empire in Wai, R., John Stuart Mill and International Relations (M.Phil. thesis, Oxford University, 1990) [unpublished].Google Scholar On liberal traditions of international relations and law, see Slaughter, A.-M. “International Law in a World of Liberal States” (1995) 6 European J. Int’l L. 503 CrossRefGoogle Scholar; Nardin, T. and Mapel, D. Traditions ofInternational Ethics (Cambridge: Cambridge University Press, 1992), chapters 7, 8, 10, and 12.CrossRefGoogle Scholar

¹³⁹ See, for example, Mill, J. S. “A Few Words on Non-Intervention” (1859) in Robson, J. M. ed., Collected Works of John Stuart Mill (Toronto: University of Toronto Press, 1963–91 ), vol. 21,Google Scholar Essays on Law, Equality, and Education, 109.

¹⁴⁰ See, for example, Mill, J. S., The Principles of Political Economy, 7th ed. (London: Longmans, Green and Company, 1909),Google Scholar Book III, chapters 17 and 18.

¹⁴¹ See, for example, Mill, J. S., Considerations on Representative Government (1861)Google Scholar chapter XVIII (“Of the Government of Dependencies by a Free State”), in Rob-son, supra note 139, vol. XIX, Essays on Politics and Society; Mill, J. S., “Wakefield’s The New British Province of South Australia,” in Robson, , supra note 139, vol.22, NewspaperWritings, 738 Google Scholar; Mill, J. S., “England and Ireland,” in Robson, , supra note 139, vol. 6, Essays on England, Ireland, and the Empire, 505 Google Scholar; Mill, supra note 140, Book II, c. 13.

¹⁴² The state or community instead is justiied as instrumental to the interests or rights of individuals, rather than as an end in itself; see Wai, supra note 138 at c. 1.

¹⁴³ Weiler, J. The Constitution of Europe (Cambridge: Cambridge University Press, 1999) at 238–46.Google Scholar

¹⁴⁴ Ibid. at 252.

¹⁴⁵ See, for example, Fawcett, J. J., ed., Declining Jurisdiction in Private International Law (Oxford: Clarendon Press, 1995)Google Scholar; Carbonneau, T., “Mitsubishi: the Folly of Quixotic Internationalism” (1986) 2 Arbitration Int’l 116 at 125Google Scholar; Lowenfeld, A., International Litigation and the Quest for Reasonableness (Oxford: Clarendon Press, 1996)Google Scholar; Paul, J. “Comity in International Law” (1991) 32 Harv. Int’l L. J. 1.Google Scholar Paul groups many of these reforms under his more expansive deinition of “comity.” I believe that comity is more narrowly concerned with interstate cooperation, and so I prefer the term “internationalist policy” for the range of economic, political, and moral arguments required to support a practice of comity.

¹⁴⁶ Brussels Convention, supra note 83.

¹⁴⁷ Tolofson, supra note 1 at 1052.

¹⁴⁸ See Castel, J-G., and Walker, J., eds., Canadian Conflict of Laws, 5th ed. (Toronto: Butterworths, 2002) at sections 13.7 (forum selection), 31.2(a) (express choice of law in contract), 15.3–15.4 (arbitration clauses).Google Scholar

¹⁴⁹ Morguard, supra note 1 at 1098.

¹⁵⁰ Dicey & Morris, supra note 92 at 1-2; Castel, supra note 10 at 4–5.

¹⁵¹ See, for example, Dicey & Morris, supra note 92 at 88–91.

¹⁵² In Story, J. Commentaries on the Conflict of Laws (Boston: Hilliard, Gray and Company, 1834) at 34,Google Scholar Joseph Story notes that comity was based on the idea of laws which arise from mutual interest and utility, from a sense of the inconveniences that would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return.

¹⁵³ Dicey, A. V. A Digest of the Law of England with Reference to the Conflict of Laws (London: Stevens and Sons, 1896).Google Scholar

¹⁵⁴ Pogge, T. “Cosmopolitanism and Sovereignty” (1992) 103 Ethics 48.CrossRefGoogle Scholar

¹⁵⁵ Brilmayer, supra note 55 at 206.

¹⁵⁶ R. v. Libman, [1985] 2 S.C.R. 178 at 213–14.

¹⁵⁷ See, for example, von Mehren, A. and Trautman, D. “Recognition of Foreign Adjudications: A Survey and A Suggested Approach” (1968) 81 Harv. L. Rev. 1601 at 1603:CrossRefGoogle Scholar

¹⁵⁸ Pogge, supra note 154 at 48–49.

¹⁵⁹ Ibid.

¹⁶⁰ Ibid. at 49.

¹⁶¹ This corresponds to the cosmopolitans identified by Kennedy, supra note 104 at 13.

¹⁶² See, for example, Slaughter, supra note 120.

¹⁶³ Morguard, supra note 1 at 1096.

¹⁶⁴ Tolofson, supra note 1 at 1051.

¹⁶⁵ Hunt, supra note 1 at 327.

¹⁶⁶ Brussels and Rome Conventions, supra note 83. See, for example, Report on the Convention on the Law Applicable to Contractual Obligations, 1979 O.J. (C59) 1, 4–5 (Giuliano-Lagarde Report), reprinted in Plender, R., The European Contracts Convention: The Rome Convention on the Choice of Law for Contracts, Annex V (London: Sweet and Maxwell, 1991)Google Scholar; Dicey & Morris, supra note 92 at 1195. For this view of the European regime, see Brand, R. “Recognition of Foreign Judgments as a Trade Law Issue: The Economics of Private International Law,” in Bhandari, J. and Sykes, A., eds., Economic Dimensions in International Law: Comparative and Empirical Perspectives (Cambridge: Cambridge University Press, 1997) 592.Google Scholar

¹⁶⁷ See, for example, Black, supra note 85.

¹⁶⁸ See, for example, the United States Supreme Court decision in Mitsubishi Motors, supra note 127 at 629–39 (per Blackmun J.). For a discussion of this case, Morguard, and the policy discourses of liberal internationalism, see Wai, R., “Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization” (2002) 40 Colum. J. Transnat’l Law 209 at 224–29.Google Scholar

¹⁶⁹ See Wai, R., “The Commercial Activity Exception to Sovereign Immunity and the Boundaries of Contemporary International Legalism,” in Scott, C., ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human RightsLitigation (Oxford: Hart, 2001) 213.Google Scholar

¹⁷⁰ U. Huber, DeConflictu Legum, translated in Llewelyn Davies, D. J., “The Influence of Huber’s DeConflictu Legum on English Private International Law” (1937) 18 Brit. YB. Int’l L. 49 at 65–66.Google Scholar

¹⁷¹ Story, supra note 152 at 34. See more generally, Bederman, D., “Compulsory Pilotage, Public Policy and the Early Private International Law of Torts” (1990) 64 Tulane L.Rev. 1033.Google Scholar

¹⁷² See, for example, Brand, supra note 166; Pryles, M., “Tort and Related Obligations in Private International Law” (1991) 227 Rec. des Cours 9.Google Scholar

¹⁷³ See, for example, Pryles, supra note 172 at 28.

¹⁷⁴ Brand, supra note 166, pairs these two kinds of arguments in advocating liberalized rules on recognition of judgments.

¹⁷⁵ See, for example, Brand, supra note 166 at 613–26.

¹⁷⁶ This concern is, of course, connected to the perpetual debate in most areas of law concerning the value of rules versus standards and certainty versus flexibility. See, for example, Hay, P., “Flexibility versus Predictability and Uniformity in Choice of Law: Relections on Current European and United States Conlict Law” (1991) 226 Rec. des Cours 281.Google Scholar

¹⁷⁷ See, for example, Whincop, M. and Keyes, M. Policy and Pragmatism in the Conflict of Laws (Aldershot UK: Ashgate, 2001) c.8.Google Scholar

¹⁷⁸ Transactions costs analysis in law builds from the foundational work of Ronald Coase; see, for example, Coase, R. The Firm, the Market, and the Law (Chicago: University of Chicago Press, 1988).Google Scholar

¹⁷⁹ See, for example, North, D. C. Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990) at 126.CrossRefGoogle Scholar

¹⁸⁰ The importance and complexity of insurance for risk in international commerce is discussed in Hauler, V., Dangerous Commerce: Insurance and the Management of International Risk (Ithaca, NY: Cornell University Press, 1997).Google Scholar

¹⁸¹ This could be done through contractual allocation between the parties, diver-siication, or insurance. The idea that parties cannot and do not allocate unknown risks has been disputed; see, for example, Triantis, G., “Contractual Allocations of Unknown Risks: A Critique of the Doctrine of Commercial Impracticability” (1992) 42 Univ. Toronto. L. J. 450 Google Scholar; for a compromise view, see Trebilcock, M., The Limits on Freedom of Contract, (Cambridge, MA: Harvard University Press, 1993) at 127–28, 138, and 144.Google ScholarPubMed

¹⁸² Nygh, P., “The Reasonable Expectations of the Parties as a Guide to Choice of Law in Contract and Tort” (1995) 251 Rec. des Cours 268.Google Scholar

¹⁸³ North, supra note 60 at 183.

¹⁸⁴ Jackson, J. Davey, W. and Sykes, A. eds., Legal Problems of International Economic Relations, 3rd ed. (St.Paul,MN: West Publishing, 1995) at 73–81.Google Scholar

¹⁸⁵ See, for example, Trakman, L., The Law Merchant: The Evolution of Commercial Law (Littleton, CO: Fred B. Rothman, 1983).Google Scholar

¹⁸⁶ See, for example, Jackson, J., The World Trading System: Law and Policy of International Economic Relations, 2nd ed. (Cambridge, MA: MIT Press, 1997) at 130 Google Scholar; Roessler, F. “Diverging Domestic Policies and Multilateral Trade Integration,” in Bhagwati, J. and Hudec, R. Fair Trade and Harmonization: Prerequisites for Free Trade? vol. 2 (Cambridge, MA: MIT Press 1996) 21.Google Scholar

¹⁸⁷ The potential links of private law and international trade are raised by the challenge in Loewen Group Inc. and Raymond Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Notice of Claim, October 30, 1998 [hereinafter Loewen v. United States] under Chapter 11 of the North American Free Trade Agreement, December 17, 1992, Can T.S. 1994 No.2, (1993) 32 I.L.M. 605 [hereinafter NAFTA]. This case is discussed later in this article under the heading “Recognition and Enforcement of Judgments: The Example of US Punitive Damage Awards.”

¹⁸⁸ Hunt, supra note 1 at 327–28.

¹⁸⁹ See, for example, Protection of Trading Interests Act 1980, s. 6 (U.K.); Foreign Extraterritorial Measures Act, R.S.C. 1985, c. F-29, s. 9.

¹⁹⁰ Morguard, supra note 1 at 1096–97.

¹⁹¹ Amchem, supra note 1 at 913–14.

¹⁹² Ibid. at 934.

¹⁹³ Hunt, supra note 1 at 321–27.

¹⁹⁴ It is arguably the achievement of this effect that informs all the obfuscation of doctrine, process, and institutions that David Kennedy has identified as being central to international law; Kennedy, D. International Legal Structures (BadenBaden: Nomos Verl.-Ges., 1987).Google Scholar The important objective is that states, for all the obscurities introduced by international law doctrine and process, are at least arguing about their concerns in terms of law and in legal institutions, rather than in terms of, and using the instruments of, pure power.

¹⁹⁵ Kramer, L. “Rethinking Choice of Law” (1990) 90 Columbia L. Rev. 277 at 339–45CrossRefGoogle Scholar; Brilmayer, supra note 55 at c. 4. For an early example of the use in international law of game theory models taken from international relations, see Abbott, K., “Modern International Relations Theory: A Prospectus for International Lawyers” (1989) 14 Yale J. Int–l L. 335.Google Scholar

¹⁹⁶ Brilmayer, supra note 55 at 156. Modern game theory builds from the work of Von Neumann, J. and Morgenstern, O. Theory of Games and Economic Behavior (Princeton, NJ: Princeton University Press, 1944).Google Scholar For the classic expositions of game theory and international relations and the texts most influential in international law, see Schelling, T. The Strategy of Conflict (Cambridge, MA: Harvard University Press, 1960)Google Scholar and Axelrod, R., The Evolution of Cooperation (New York: Basic Books, 1984).Google Scholar More generally on the use of game theory in law, see Baird, D. Gertner, R. and Picker, R., Game Theory and the Law (Cambridge, MA: Harvard University Press, 1994).Google Scholar

¹⁹⁷ Brilmayer, supra note 55 at 184–87; Axelrod, supra note 196.

¹⁹⁸ Kramer, supra note 195 at 342–44.

¹⁹⁹ Ibid. at 343, n. 228.

²⁰⁰ Brilmayer, supra note 55 at 188–89 (contrasting “diffuse reciprocity” to “specific reciprocity”); Kramer, supra note 195 at 344, discusses the interesting example of the development of rules with respect to the recognition of foreign judgments in the pre-revolutionary era in the United States.

²⁰¹ Brilmayer, supra note 55 at 185. The concept is developed by Schelling in The Strategy of Conlict, supra note 196; Kramer, supra note 195. See also Kramer, L. “More Notes on Methods and Objectives in the Conlict of Laws” (1991) 24 Cornell Int’l L. J. 245.Google Scholar

²⁰² Amchem, supra note 1 at 934.

²⁰³ Tolofson, supra note 1 at 1059.

²⁰⁴ Morguard, supra note 1.

²⁰⁵ The concept of the liberal peace is taken from Kant, I., “Perpetual Peace,” in Humphrey, T., ed., Perpetual Peace and Other Essays (Indianapolis: Hackett Publishing Company, 1983).Google Scholar The modern restatement of the concept as an empirical claim concerning contemporary international relations is found in Doyle, M., “Kant, Liberal Legacies, and Foreign Affairs: Parts One and Two” (1983) 12 Philosophy and Public Affairs 205 and 325.Google Scholar See also Russett, B., Grasping the Democratic Peace: Principles for a Post Cold-War World (Princeton, NJ: Princeton University Press, 1993)Google Scholar; Moravscik, A., “Taking Preferences Seriously: A Liberal Theory of International Politics” (1997) 51 International Organization 513.CrossRefGoogle Scholar

²⁰⁶ Slaughter, supra note 138.

²⁰⁷ Ibid. at 524.

²⁰⁸ Ibid. at 525.

²⁰⁹ Ibid.

²¹⁰ Ibid. at 521.

²¹¹ Silberman, supra note 43.

²¹² For example, Articles I and III of the General Agreement on Tariffs and Trade, October 30, 1947, 55 U.N.T.S 194, T.I.A.S. No. 1700 [hereinafter GATT].

²¹³ See, for example, Trebilcock, supra note 181 at c. 9. In that chapter, Trebilcock groups together as “discrimination,” human rights discrimination, immigration policy, and restrictions on free trade. The connection between liberal attitudes towards free trade and to migration are also evoked in Trebilcock, M. and Howse, R., The Regulation of International Trade, 2nd ed. (London: Routledge, 1999) at 1, 13, and 14.Google Scholar There are, however, arguably as many differences as similarities between these topics from a discrimination perspective. For example, the “discrimination” contained in trade restrictions often has less serious consequences for disadvantaged groups and such restrictions are also often justifiable in a way that the other kinds of discrimination are not.

²¹⁴ See the section entitled “Cosmopolitanism and Anti-Parochialism” earlier in this article.

²¹⁵ See Hirschman, A. O., The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton, NJ: Princeton University Press, 1977) at 79–82.Google Scholar Hirschman is mainly concerned with seventeenth- and eighteenth-century writers, such as Montesquieu and James Steuart. The idea of the doux commerce as a civilizing function continued on in liberal writings on international trade. For example, Mill ends his inluential chapter on international trade with the observation that “the economical advantages of commerce are surpassed in importance by those of its effects which are intellectual and moral”; Mill, supra note 140 at 581–82.

²¹⁶ Joseph Nye labels these two categories of liberal internationalists as “commercial/trade” liberals and “sociological/transnational” liberals; see Nye, J., “Neorealismi and Neoliberalism” (1988) 40 World Politics 235 at 245–47.CrossRefGoogle Scholar More generally, see Ceadel, M., Thinking about Peace and War (Oxford: Oxford University Press, 1989) especially chapters 6 and 7.Google Scholar

²¹⁷ See, for example, Cobden, R., Russia, 1836 , in Cobden, R., Political Writings of Richard Cobden (London: Unwin, 1903) 122 at 222–25.Google Scholar

²¹⁸ See Wai, supra note 169.

²¹⁹ Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers’ Publishing Company, 1989) at 55–73.Google Scholar Koskenniemi considers the view of the Westphalian Peace as a form of “social contract” in which the liberal structure of politics was adopted into international relations in Europe (at 73).

²²⁰ On the Pareto criteria in welfare economics, see, for example, Trebilcock, supra note 181 at 7–8.

²²¹ For a survey of rational cooperation models and international law, see Snidal, D., “Political Economy and International Institutions” (1996) 16 Int’l Rev. L. and Econ. 121.CrossRefGoogle Scholar

²²² Koskenniemi, supra note 219.

²²³ See Wai, supra note 169 at 235-39 (limits on arguments from cooperative beneit).

²²⁴ This, of course, is a version of the Holmesian dictum from Lochnerv. New York, 198 U.S. 45 at 76 (1905), Holmes J., dissenting, that “g]eneral propositions do not decide concrete cases.” This general critique of formalist legal reasoning was a key plank of legal realism. Here, I follow critical legal studies scholars in applying the dictum to policy reasoning in law; see, for example, Kennedy, D., “Form and Substance in Private Law Adjudication” (1976) 89 Harv. L. Rev. 1685 CrossRefGoogle Scholar; Kennedy, D., “A Semiotics of Legal Argumentation” (1991) 42 Syracuse L. Rev. 75 Google Scholar; Kelman, M., A Guide to Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987), c. 4 and 5Google Scholar; Singer, J., “Legal Realism Now” (1988) 76 Cal. L. Rev. 465.Google Scholar For the development of this theme more generally in social theory, see Unger, R., False Necessity (London: Verso, 1987).Google Scholar

²²⁵ Singer, J., “Real Conflicts” (1989) 69 Boston Univ. L. Rev. 1.Google Scholar

²²⁶ See, for example, Calabresi, G., “Pointlessness of Pareto: Carrying Coase Further” (1991) 100 Yale L. J. 1211 CrossRefGoogle Scholar; Snidal, D., “International Political Economy Approaches to International Institutions,” in Bhandari, and Sykes, , supra note 166 at 485.Google Scholar

²²⁷ A danger especially with respect to developing countries; see, for example, Sornarajah, M., “The Myth of International Contract Law” (1981) J. World Trade 187 at 200–01.Google Scholar

²²⁸ In Bank of Nova Scotia v. Angelica White wear Ltd.,1987] 1 S.C.R. 59, the Supreme Court of Canada signalled its awareness of this problem in an international commercial context involving letters of credit. Justice Le Dain for the court considered whether the use of letters of credit as an important payment mechanism in international commerce would be advanced by expanding or restricting the fraud exception to a bank’s obligation to pay under a letter of credit. Justice Le Dain described how, on the one hand, the international commercial use of letters of credit would be harmed by a broad fraud exception that “created serious uncertainty and lack of conidence in the operation of letter of credit operations,” but that, on the other hand, the principle of autonomy of the letter of credit should not be used to “encourage or facilitate fraud” in international transactions (at 72 ).

²²⁹ Kennedy, D. and Michelman, F., “Are Contract and Property Efficient?” (1980) 8 Hofstra L. Rev. 711 at 741.Google Scholar

²³⁰ Ibid.

²³¹ I elaborate on the goal of transnational regulation in private international law in Wai, supra note 168.

²³² See Wai, supra note 169 at 236–39.

²³³ It may be that the expansive application of Morguard, supra note 1, to recognition and enforcement of default judgments from non-Canadian jurisdictions may be an example of this kind of misperception; see Blom, supra note 28.

²³⁴ I discuss these similarities in Wai, supra note 6.

²³⁵ Bull, H., The Anarchical Society (London: Macmillan, 1977).CrossRefGoogle Scholar

²³⁶ See, for example, Trebilcock and Howse, supra note 213 at 7-9, for a discussion of this argument in the context of international trade regulation.

²³⁷ Effectively, non-reciprocity means abandonment of a “tit-for-tat” strategy that may actually serve the strategic purpose of achieving a rough form of international cooperation; see Brilmayer, supra note 55 at 184–87.

²³⁸ Some lower courts have applied Morguard to international cases of recognition and enforcement; see, for example, Moses v. Shore Boat Builders Ltd. ( 1993), [1994] 106 D.L.R. (4th) 654 (B.C.C.A.), leave to appeal to S.C.C. refused, [1994] 1 S.C.R. xi [hereinafter Moses]; Arrowmaster Incorporated v. Unique Forming Ltd. (1993) 17 O.R. (3d) 407 (Gen.Div.). See, generally, Blom, supra note 28; Sullivan, supra note 16.

²³⁹ For example, United States v. Ivey, (1995) 26 O.R. (3d) 533 at 549, citing the principle of comity from Morguard in support of reform of the rule.

²⁴⁰ Slaughter, supra note 138.

²⁴¹ In this connection, it is interesting in this respect to compare the majority Supreme Court of Canada judgments with respect to extradition to the United States to face the potential death penalties in Kindler, supra note 118, and Re Ng Extradition, supra note 118, which were written by a court contemporaneously generating the tetralogy in private international law. In contrast, the recent judgment in United States v. Burns, supra note 119, may indicate a rethinking at the court concerning the nature of its internationalism in the criminal law area. For an argument concerning some of the shared characteristics of the extradition cases and the tetralogy in private international law, see Wai, supra note 6.

²⁴² Singer, supra note 225 at 41.

²⁴³ Rheinstein, M., “How to Review a Festschrift” (1962) 11 Am. J. Comp. L. 632 at 664,CrossRefGoogle Scholar quoted in Juenger, F., Choice of Law and Multistate Justice (Boston: Martinus Nijhoff, 1993) at 161, n. 997.Google Scholar

²⁴⁴ See Dicey & Morris, supra note 92 at 5–6:

The authors’ choice of France for their example is of interest.

²⁴⁵ Tolofson, supra note 1 at 1058.

²⁴⁶ Castel, supra note 10 at 67.

²⁴⁷ La Forest, G. V., The Allocation of the Taxing Power under the Canadian Constitution, 2nd ed. (Toronto: Canadian Tax Foundation, 1981)Google Scholar; La Forest, G. V., Natural Resources and Public Property under the Canadian Constitution (Toronto: University of Toronto Press, 1969).Google Scholar In an early article, Justice La Forest made the connection between the constitutional law of federalism and international law; La Forest, G. V., “May the Provinces Legislate in Violation of International Law?” (1961) 39 Can. Bar Rev. 78.Google Scholar

²⁴⁸ See, for example, R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, La Forest J. dissenting; AirCanada v. B.C., [1989] 1 S.C.R. 1161; Friends ofthe Oldman River Society v. Canada, [1992] 1 S.C.R. 3; Ontario Hydro v. Ontario (Labour Relations), [1993] 3 S.C.R. 327.

²⁴⁹ See McEvoy, supra note 23.

²⁵⁰ A.G. Can. v. A.G. Ont. (Labour Conventions), [1937] A.C. 326. For the debates about the treaty implementation power, see Hogg, supra note 115 at c. 11; La Forest, G. V. and Associates, Water Law in Canada: The Atlantic Provinces (Ottawa: Information Canada, 1973) at 63–68.Google Scholar

²⁵¹ For example, GATT, supra note 212 at Article XXIV( 12).

²⁵² NAFTA, supra note 187.

²⁵³ See, for example, Wirth, D., “Government by Trade Agreement,” in Dallmeyer, D., ed., Joining Together, Standing Apart: National Identities after NAFTA (The Hague: Kluwer, 1997) 111 at 124–25.Google Scholar The impact of international trade treaties on not only issues of federal-state relations but also municipal government is demonstrated clearly by the recent arbitral award of the tribunal constituted pursuant to Chapter 11 of the NAFTA in Metalclad Corp. v. Mexico (Arbitration Award, August 30, 2000) and the judicial review of that award, Mexico v. Metalclad Corp., [2001] B.C.J. 950 (BC Supreme Court, May 2, 2001).

²⁵⁴ Hunt, supra note 1.

²⁵⁵ Another example of the indirect impact of internationalization on federal relations is seen in the recent decision of the Supreme Court of Canada in Ward v. Canada (Attorney General), 2002 S.C.C. 17, where the court considered whether federal legislation restricting the trade in seal and seal products fell within the federal fisheries power under section 91(12) of the Constitution Act, 1867, supra note 24, or fell instead within provincial powers over property and civil rights under section 92(13). In characterizing the legislation, the court referred to the desire of the federal government to respond to concerns about international sales boycotts of seal and other isheries products as relevant to its characterization of the federal legislation as being in pith and substance concerned with matters of management and control of the fisheries. Ibid. at paras. 2, 8, and 21.

²⁵⁶ Even within the more “legalistic” processes established in international institutions such as the WTO, dispute resolution retains signiicant “pragmatic” elements; see, generally, Shell, G. R., “Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization” (1995) 44 Duke L. J. 829.CrossRefGoogle Scholar

²⁵⁷ See Williams, S. and de Mestral, A. L. C., An Introduction to International Law: Chiefly as Interpreted and Applied in Canada, 2nd ed. (Toronto: Butterworths, 1987) c. 8.Google Scholar

²⁵⁸ See Hogg, supra note 115 at sections 1.8, 11.2, and 11.3.

²⁵⁹ In Wai, supra note 6, I compare and contrast the lack of deference in the tetralogy with (1) Justice La Forest’s legal realist take on the limited effectiveness of adjudication in comparison to legislative, executive and administrative processes; (2) his generally deferential attitude towards the legislative and executive branches in the application of the Charter; and ( 3) his restricted idea of the role of national courts in other international areas, such as in extradition.

²⁶⁰ Canada v. Schmidt, supra note 118; R v. Harrer, [1995] 3 S.C.R. 562.

²⁶¹ United States v. Cotroni; United States v. El Zein, [1989] 1 S.C.R. 1469 at 1487–90.

²⁶² Justice La Forest notes in Hunt, supra note 1 at 328, that the federal Parliament is expressly permitted by the constitution to legislate with international extraterritorial effect; see Statute of Westminster,1931 (U.K.), 22 Geo.V, c.4, s. 3: “It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.”

²⁶³ Hunt, supra note 1 at 331.

²⁶⁴ Tolofson, supra note 1 at 1054.

²⁶⁵ I argue this in Wai, supra note 168.

²⁶⁶ For example, in Wai, supra note 169, I argue that the commercial activity exception to sovereign immunity lacks necessary particularism. This is particularly problematic when, on the one hand, a broad exception to sovereign immunity has been taken with respect to commercial activity and, on the other hand, the immunity rule has been applied broadly with respect to almost all other kinds of activity, including activity involving human rights abuses.

²⁶⁷ For a model of this “pragmatic” approach in the US conflict of laws, see Singer, J., “A Pragmatic Guide to Conflicts” (1990) 70 Boston Univ. L. Rev. 731.Google Scholar

²⁶⁸ Under dépeçage, various state laws may govern different aspects of a “single” business relationship, for example, different laws may apply sales, transportation, and credit aspects. See, for example, Rome Convention, supra note 83, articles 3(1) and 4(1); Castel et al., supra note 71 at 171.

²⁶⁹ Recherches Internationales Québec v. CambiorInc., [1998] Q.J. No. 2554 (Quebec Superior Court, August 14, 1998) [hereinafter Cambior]. For an extended commentary, see Seck, S., “Environmental Harm in Developing Countries Caused by Subsidiaries of Canadian Mining Corporations: The Interface of Public and Private International Law” (1999) 37 Can. YB. Int’l L. 139.Google Scholar

²⁷⁰ Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December, 1984, 634 F. Supp. 842 (S.D.N.Y. 1986), aff’d 809 F.2d 195 (2d Cir. 1987) [hereinafter Union Carbide]. The Second Circuit ruled that a suit against Union Carbide by Indian victims and the Indian government of the Bhopal chemical disaster was forum non conveniens in the New York courts and should be heard in the courts of India. This conclusion was reached in spite of the submissions of the Indian government who agreed that the suit was better heard in the US court. The court did impose a number of conditions on its stay, including that Union Carbide consent to submit to the broad discovery under the US Federal Rules of Civil Procedure. For critical commentary, see Baxi, U., Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (Delhi and Bombay: Indian Law Institute and N.M. Tripathi, 1986)Google Scholar; Paul, supra note 145 at 61–2.

²⁷¹ Cambior, supra note 269.

²⁷² I discuss regulatory gaps and regulatory competition as problems of international cooperation in private international law in Wai, mpranote 168 at 250–58.

²⁷³ The recent House of Lords decision in Lubbe v. Cape plc, [2000] 4 All E.R. 268 (H.L.), considered forum non conveniens, but in its application permitted South African plaintiffs to continue with their litigation in English courts against an English parent company for personal injuries related to exposure to asbestos. This decision may be an example of greater sensitivity to the particular procedural problems that may impede litigants in the legal systems of some developing countries.

²⁷⁴ Union Carbide, supra note 270.

²⁷⁵ Comity concerns make more sense where governments take a position that domestic processes are sufficient.

²⁷⁶ On the difficult position of developing countries with respect to international legalism in a global context of neoliberalism and neoimperialism, see Wai, supra note 169 at 241–45.

²⁷⁷ Seck, supra note 269.

²⁷⁸ With respect to the complaints concerning Talisman, see, for example, Human Security in Sudan: The Report of a Canadian Assessment Mission, prepared by John Harker for the Minister of Foreign Affairs (Ottawa,January 2000).

²⁷⁹ A signiicant recent example of a related debate in the Canada-US context concerns the willingness of Canadian courts perhaps too readily to “complement, coordinate and where appropriate accommodate the proceedings” of US courts in cross-border insolvencies; see Re Babcock & Wilcox Canada Ltd., (2000) 18 C.B.R. (4th) 157 (Ont. S.C.J. [Commercial List]) at para 9. It evidences the importance of the tetralogy in Canadian law that Justice Farley, the leading judge in Ontario on matters related to cross-border insolvencies, invoked Morguard in his judgment in Babcock and in previous judgments as providing a strong policy support for extending the practice of comity to the international context and to the context of cross-border insolvencies. For critical commentary, see, for example, Ziegel, J., “Corporate Groups and Canada-US Cross-border Insolvencies: ContrastingJudicial Visions” (2000) 25 C.B.R. (4th) 161.Google Scholar

²⁸⁰ See Blom, supra note 28, for a survey of cases.

²⁸¹ Moses, supra note 238.

²⁸² Castel, supra note 10 at 66.

²⁸³ Smith Kline & French Laboratories Ltd. v. Bloch ( 1983), 2 All E.R. 72 at 74 (C.A.).

²⁸⁴ Canadian courts may award exemplary damages in tort law and, more rarely, in contract; see Waddams, S., The Law of Damages (Toronto: Canada Law Book, 1997) at paras. 11.250-11.260.Google Scholar The recent decision of the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 S.C.C. 18, signals that substantial punitive damages may be available, although “very much the exception rather than the rule” (para. 94), in breach of contract cases in Canada. It is interesting that the court considered submissions concerning the excesses of the US experience with punitive damages in the course of its evaluation of what Canadian law on the issue should be (paras. 60–65).

²⁸⁵ The court in Tolofson, supra note 1 at 1059 did not seem to appreciate this; it considered that general convergence in liability principles with respect to guest passenger statutes had diminished public policy problems because only differences in quantum remained. In Kidron v. Grean, (1999) 48 O.R. (3d) 775 (Gen.Div.), leave to appeal refused 48 O.R. (3d) 784, Justice Brennan suggested a more cautious approach to the recognition and enforcement of a California judgment that included a substantial award for emotional distress damages. The judge seemed particularly concerned about the quantum of the damages awarded in comparison to the caps on recovery of such damages in Canada.

²⁸⁶ See Weintraub, supra note 86 at 203–05.

²⁸⁷ Judgment of June 4, 1992, 13 ZIP 1256 (1992), (1993) 32 I.L.M. 1320. See Bungert, H., “Enforcing U.S. Excessive and Punitive Damages Awards in Germany” (1993) 27 Int’l Lawyer 1075 Google Scholar; Hay, P., “The Recognition and Enforcement of American Money-Judgments in Germany — The 1992 Decision of the German Supreme Court” (1992) 40 Am. J. Comp. L. 729 CrossRefGoogle Scholar; Brand, supra note 166 at 608–13.

²⁸⁸ See, for example, An Oregon Partnership, Northcon I v. Yoshitaka Katayama; Mansei KogyoKabushikiKaisha, H.J. ( 1376) 79 [1991], H.T. (760) 250 [1991] (Tokyo District Court, 18 February 1991) reported at (1992) 35Japanese Annual Int’l L. 177; see Brand, supra note 166 at 612.

²⁸⁹ Castel, supra note 10 at 171–74.

²⁹⁰ O’Keefev TheLoewen Group Inc. etal., 91–67–423 (Cir.Ct, Hinds Co., Miss. 1995).

²⁹¹ Loewen v. United States, supra note 187. The claim was filed under the private-party investor dispute settlement provisions of Section B, Chapter 11 of NAFTA, supra note 187. The substantive claim is based on Articles 1102, 1105, and 1110 of NAFTA. See “NAFTA Panel Expected to be Constituted Soon in Canadian Firm’s $725 Million NAFTA Claim” January 20, 1999, BNA Int’l Trade Reporter 81; Krauss, M., “NAFTA Meets the American Torts Process: O’Keefe v. Loewen” (2000) 9 George Mason. L. Rev. 69.Google Scholar An initial ruling of the panel rejected arguments by the United States on matters of competence and jurisdiction; see The Loewen Group, Inc. and Raymond L. Loewen v. United States of America (ICSID Case No. ARB (AF)/98/3), Decision of the Arbitral Tribunal on Hearing of Respondent’s Objection to Competence and Jurisdiction ( January 5, 2001 ).

²⁹² Securities Exchange Act of 1934, 15 U.S.C. §78 (1934).

²⁹³ See, for example, Foreign Extraterritorial Measures Act, supra note 189; Castel et al. , supra note 71 at 645–46.

²⁹⁴ Substantial disagreement about punitive damages is reflected in debates within the United States itself. Weintraub observes that in international negotiations concerning the recognition and enforcement of US judgments, “[d]efense of punitive damages will not be helped by the fact that most states have, by statute or decision, placed limits on punitive awards and that the U.S. Supreme Court has held that a ‘grossly excessive’ award of punitive damages violates due process”; Weintraub, supra note 86 at 182–83 [notes omitted]. The Mississippi judgment against Loewen features prominently as a chapter in a conservative journalist's book severely criticizing the legal system in the United States; Boot, M., Out of Order: Arrogance, Corruption, and Incompetence on the Bench (New York: Basic Books, 1998) at 158–60Google Scholar; see also Krauss, supra note 291.

²⁹⁵ Burley, A-M., “Law among Liberal States: Liberal Internationalism and the Act of State Doctrine” (1992) 92 Columbia L. Rev. 1907 at 1975–85 and 1993.CrossRefGoogle Scholar

²⁹⁶ Unfortunately, some such resistance tends toward equally naive antiinternationalist positions rather than carefully articulated policy analysis and response.

²⁹⁷ See Pue, W., Pepper in Our Eyes: The APEC Affair (Vancouver: UBC Press, 2000).Google Scholar