LA CONDITION INCERTAINE DES LOIS DE POLICE ETRANGERES ET DU SECRET BANCAIRE EN DROIT INTERNATIONAL PRIVE QUEBECOIS

Authors

  • GERALD GOLDSTEIN

Abstract

There is currently a serious controversy in private international law surrounding the application of a foreign mandatory rule instead of that which would be designated by the conflict rule. Despite the risks of uncertainty and arbitrary decisions associated with such an approach, article 3079 C.C.Q ., as some international convention do, gives judges such a discretionary power, albeit as an exceptional rule, to further international co-operation. A recent Quebec judgment (Arab Banking Corp. v. Wightman) provides the first interpretation of this provision. In this case, the foreign mandatory rule, regarding confidentiality of banking operations, was held not to apply. It is the author's view, supported by this case, that the conditions for the application of a foreign mandatory rule are so onerous that it is unlikely that such rules will apply often. However, the application of foreign mandatory rules within the Canadian federation would be desirable, given the new context of interprovincial co-ordination facilitated by the Supreme Court of Canada.

Keywords:

International Law

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Published

1997-09-01

Issue

Section

Legal Commentary