DAMAGES FOR BREACH AND INTERPRETATION OF JURISDICTION AGREEMENTS IN COMMON LAW CANADA
Keywords:agreemeent, breach, choice of law, contract, damages, exclusive jurisdiction, foreign proceeding, forum selection clause, international litigation, jurisdiction, jurisdiction agrements, private international law
An important provision often found in international or interprovincial commercial contracts is a jurisdiction agreement. Such a provision is used by the parties to provide them some measure of certainty regarding the forum in which disputes arising under their contract would be settled. In Canada, it is fairly well established that a jurisdiction agreement serves as a basis of jurisdiction and an action brought in breach of such an agreement shall be stayed, unless there is strong cause why it should not be. However, other aspects of the law on jurisdiction agreements are not yet so well established. For example: What principles guide Canadian courts in the interpretation of jurisdiction agreements and how different are these principles from those applied in the case of ordinary contracts? Can a party impeach the enforcement of a foreign judgment on the basis that it was given by a foreign court in breach of a jurisdiction agreement? And, to what extent can the victim of a breach of a jurisdiction agreement bring an action for damages in respect of that specific breach? This article examines these issues. It identifies areas where there are gaps in the existing jurisprudence and issues on which the law is unsettled or underdeveloped. It proffers solutions to those issues and, for this purpose, draws on comparative jurisprudence from other countries, where appropriate.