Abstract
If there were free trade in litigation throughout North America, as NAFTA promises to create in goods and services, a plaintiff would just sue a defendant wherever it perceived it would get the best deal, in terms of value of remedies compared with the cost of litigation. The courts and legal professions in each jurisdiction would compete with each other to provide the most efficient service and the fairest result for each litigant. In the legal market, however, boundaries are still definitive. The administrative of justice is, to a large extent, in the hands of local monopolies operated by federal, state, or provincial governments.
Litigants often have no choice but to deal with the legal system in one or another jurisdiction. Whatever interjurisdictional choices there are may result from the accidental overlap and interplay of local rules as much as from deliberate coordination among legal systems. Even within a country like Canada, which has been in a common market since 1867, a plaintiff does not have a clear set of rules as to which forums are open to it, a clear idea of what its relative chances of success are in one forum or another, or an assurance that the remedy it gets will have value outside the province where it is obtained. There has been improvement on all these fronts in recent years, however, and in the fullness of time there will no doubt be further improvement at the international level as well. Not to be overlooked, even in the current state of the law, is the considerable extent to which parties can structure a transaction to avoid problems relating to court jurisdiction, applicable law, and the enforcement of eventual judgments.
The problem set for us is designed to highlight the accidental and deliberate relationships between the legal systems of Canada, the United States, and Mexico as they bear on commercial disputes. This is the legal infrastructure that the participant in the market created by MAFTA will have to work with. The Canadian part of it has certain typically Canadian qualities: a bit conservative in its approach to things; French-tinged in Quebec and British-tinged elsewhere, but with the North American accent getting more noticeable; and accommodating itself a little reluctantly to a more complicated and more demanding world than it was used to.
Recommended Citation
Blom, Joost
(1992)
"An International Transaction in the Canadian Conflict of Laws,"
Florida Journal of International Law: Vol. 7:
Iss.
3, Article 5.
Available at:
https://scholarship.law.ufl.edu/fjil/vol7/iss3/5