Parallel proceedings provisions need improvement
CBA argues draft text for potential Hague convention out of step with Canadian common law
In a nutshell
The CBA’s Dispute Resolution Section is responding to survey questions contained in a consultation from the Permanent Bureau of the Hague Conference on Private International Law (HCCH). The consultation concerns proposed provisions for a potential convention to address the challenges of parallel proceedings and related actions occurring in multiple countries. The section argues that the draft text’s jurisdictional framework is significantly out of step with Canadian common law.
Key concerns
Canadian common law relies on a flexible “real and substantial connection” test rather than finite jurisdictional lists, first-seized rules, or rigid definitions of parallel proceedings and related actions. The CBA therefore suggests several articles in the draft text should be changed, among them:
- Article 2(3): It is the CBA’s position that interim protective measures, especially those supporting arbitration, should be excluded from the scope of application of the convention.
- Articles 7–10, 13: These articles either unduly constrain judicial discretion or, paradoxically, reintroduce unpredictability through broad exceptions.
- Article 5(2): recognition and enforcement standards lack clarity.
Why this matters
The proposed provisions for the convention on parallel proceedings and multi-party actions can directly affect the CBA, but the draft text in its current form is seen as unlikely to substantially improve the status quo unless widely ratified and more closely aligned with existing common law practice.
Responding to the HCCH consultation gives the CBA the opportunity to propose changes to bring the draft text’s jurisdictional framework in line with Canadian common law.
Read the full submission.
