ABSTRACT
Most lawyers dislike having to deal with Conflicts problems. For solicitors, possible Conflicts issues are dealt with by the addition of choice of law and forum selection clauses to the agreements they draft, even though many solicitors have little idea of the actual effect of those clauses, particularly the first one. Barristers have a much more difficult time. This paper will argue that the traditional choice of law process that Canadian courts have adopted is fundamentally flawed; it is not just wrong in point of detail, it suggests a way of resolving the disputes that come before Canadian courts that ignores, if it is not contrary to, the ordinary methods of resolving disputes. There are two principal ways that the process can achieve results that are hard to defend. The first is that limits – limits imposed by Canadian constitutional law or international law – are ignored. The second is that the process has the capacity, frequently realized, to subvert the values that Canadian law has adopted in cases where the judges do not talk ‘Conflicts’. In other words, there are cases where the result cannot be defended on the usual grounds that Canadian law exists to forward. Those values, the values that underlie the Canadian law of contracts, torts, property, marriage and divorce, etc, are at risk when counsel or a court ‘talks Conflicts’ instead of focussing on the underlying areas of Canadian constitutional and domestic provincial law.
The paper will focus on a small number of issues and cases that illustrate the form and method of the traditional way courts and commentators approach ‘Conflicts’ problems. It will show how that process makes the consideration by a court of, for example, constitutional, contracts, or torts values, impossible. It will argue and show that there are preferable and easy solutions to hand, once counsel and courts can let go of what they believe Conflicts cases require.
Angela Swan, Freedom From The Conflict Of Laws Is In Your Grasp (2020) 51 The Advocates’ Quarterly 21.
First posted 2021-04-17 09:30:28
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