Treaty Mechanisms To Recognize And Enforce Foreign Judgments
Canada’s common law framework for enforcing judgments works, but the rest of the world has begun to move on. Recognition and enforcement of foreign civil and commercial judgments in Canada generally falls under the common law, or the Civil Code of Quebec, in that province. Canada has only one implemented treaty, with the United Kingdom, which supersedes these rules and simplifies recognition and enforcement procedures for U.K. judgments. This instrument removes the formality of having to bring an action to enforce a foreign judgment in a Canadian court.
Over the last several decades, there has been a major international effort through the Hague Conference on Private international Law to establish common rules for recognition and enforcement of foreign court decisions, particularly in civil and commercial matters. Both Canada and the United States have been strong participants in the Hague Conference’s law-making processes. Yet both have remained slow to act on the results.
The 2005 Hague Convention: a Missed Opportunity?
A decade of negotiations resulted in the 2005 Hague Convention on Choice of Courts Agreements. The Choice of Courts Convention provides relatively complete rules that assist international trade and investment by providing certainty in how courts treat forum-selection clauses – that is, civil and commercial contracts that specify whose courts are to resolve disputes. Crucially, it also regulates when the courts of state parties must enforce or decline to enforce judgements that result from a proper application of its jurisdictional rules.
Canada has approved the form of, but not yet signed on to this Convention, though elsewhere it has been in force since October 2015. The United States has not yet ratified it, either, but efforts exist in both countries to adopt this law.
The 2019 Judgments Convention: a Broader Framework for Everyday Disputes
Early negotiations of the Choice of Courts Convention contemplated a broader treaty that would have applied also to the recognition and enforcement where courts exercise jurisdiction to hear a dispute on grounds other than party agreement. However, this was left to a later treaty, the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, or “Judgements Convention.” Again, neither Canada nor the United States have implemented the Judgments Convention, despite its advantages. It has been in force elsewhere since September 2023.
The Judgments Convention remains important because many cross-border contracts are not drafted by or with the assistance lawyers and usually do not designate where disputes will be resolved – whether by arbitration or in the courts of a particular country, state or province. This is often the case with contracts involving less than several million dollars. This treaty is also important because it would facilitate the recognition and enforcement of judgments arising from torts in other countries.
In either country, ratification of these treaties is slowed because implementing legislation falls under provincial and state jurisdiction. Federalism constraints limit each country’s ability to accomplish their goals in signing. Constitutionally, civil procedure in Canada is a matter of “Property and Civil Rights in the Province,” so both conventions would require enacting legislation in each province. The U.S. does not have the same constitutional limitations. Although the treaties’ subject matter falls within state jurisdiction, a treaty in the U.S. can be adopted by the President and Senate as part of the “Supreme Law of the Land,” without the consent of state legislatures. Thus far, however, the U.S. government, like Canada, has not seen ratification as a federal priority.
REFORM INERTIA?
Both conventions have “federal state clauses” permit federal governments like the U.S. or Canada to ratify a treaty without legislation from all states or provinces. Still, there is diminished value to Canada and its trading partners if few provinces participate. Implementation can be slow even with broad provincial support. That seems to be the experience with both the Choice of Courts Convention, . and the Judgments Convention. despite extensive participation in its negotiation.
Other, made-in-Canada model legislation has suffered similar “reform inertia” The Uniform Law Conference of Canada has developed model legislation with respect to recognition and enforcement, jurisdiction and related fields which may be harmonized with adoption of the Hague treaties discussed here, but again, while not necessarily controversial, these instruments taken together have not been a burning priority for governments, notwithstanding their clear value for Canadian private actors in international business.
Reciprocal Judgment Recognition Works, Until it Doesn’t
From one perspective, Canada’s lack of follow-through may risk falling behind major trading partners, to the potential disadvantage of Canadian businesses. The European Union, for example, has ratified both conventions, both of which, as noted above, are also in force.
However, from another perspective, Canadian courts are already very receptive to foreign judgments.[2] Although there is no application-and-registration mechanism as with extra-provincial judgments,[3] you may bring an action in a Canadian court to enforce a foreign judgment as if it were a debt obligation, typically using a summary procedure. The judgment will be enforced if the foreign court had jurisdiction to decide the matter, according to principles acceptable in Canadian law: (1) where a defendant was present in the jurisdiction at the time proceedings were commenced, or attorned to the foreign proceedings; and (2) where the subject matter of the dispute had a “real and substantial connection” to the foreign court’s territorial jurisdiction.[4] A defendant may yet prove that they foreign proceedings denied them natural justice, that the judgment was fraudulently procured, or that the foreign law which determined the judgment was contrary to Canadian public policy. However, these “impeachment” defences are typically interpreted with a generous attitude toward recognition and enforcement in commercial cases.
Similarly, Canadian judgments have not generally faced the same resistance to enforcement in foreign courts as others. A major impetus for American support for these treaties is likely to ensure respect for U.S. judgments abroad, where reports suggest that some foreign courts view their approach to damages to be out-of-step with their own sense of fairness.[5] In fact, early drafts of the 2005 Choice of Courts Convention would have allowed an enforcing court to reduce non-compensatory portions of damages.
Both Canada and the United States generously recognize foreign judgments without requiring formal reciprocity from other countries, while U.S. judgments face barriers to enforcement that Canada does not. However, harmonization with major trading partners already parties to the 2005 Choice of Courts and 2019 Judgments conventions is undoubtedly to the advantage of both countries and as between themselves, in particular, as U.S. judgments tend to dominate the enforcement dockets of Canadian courts. It is to be hoped that both countries will make adoption of these two Hague treaty instruments a future priority.
*The authors acknowledge with thanks, the research assistance of Will Werstiuk, Cambridge LLP, Summer Student, 2025, J.D. Candidate, Queen’s University, 2026,. in the preparation of this article.
[1] Convention Between the United Kingdom of Great Britain and Northern Ireland and Canada Providing For The Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, Done at Ottawa, 24 April 1984, [19870 Can. T.S. No. 29; [1988] Gr. Britain T.S. No. 74.
[2] See eg., H. Scott Fairley, “Open Season: Recognition and Enforcement of Foreign Judgments in Canada After Beals v Saldanha”, 11:3 ILSA Journal of International and Comparative Law, 2005.
[3] Reciprocal Enforcement of Judgments Act, RSO 1990, c R.5, s 2.
[4] Beals v Saldanha, 2003 SCC 72 at para 37;
[5] Genevieve Saumier and Linda Silberman, The 2019 Hague Judgments Convention: Perspectives from the United States and Canada, NYU School of Law, Public Law and Legal Theory Research Paper Series, No 23-11 (February 2023).
Scott Fairley was a private sector advisor to the Government of Canada and a member of the Canadian Delegation to the Hague Conference on Private International Law negotiating the Choice of Courts Convention of 2005.
Joshua was called to the bar in 2025 and focuses on defamation, professional negligence, statutory appeals, and business disputes. He articled at Cambridge, appeared before tribunals and courts, and contributed to constitutional matters.