In Canadian conflict of laws there is a long-standing rule that foreign penal and
tax judgments are excluded from enforcement within Canada (treaties and
conventions aside). It is uncertain whether this "penal and tax rule" also extends to
"other public law" as pronounced by some English judgments and scholars. Under
Swiss law there is a similar rule; however, it extends, with certain limitations, to the
whole body of foreign public law. In view of the ongoing trend towards
internationalization and globalization, which will require courts to deal more and
more with judgment enforcement, the uncertainties that go along with the concept of
the exclusionary rule are problematic. Furthermore, the increasing interrelation
between private and public law creates considerable doubts with respect to the scope
of the exclusionary rule.
In the introduction, I discuss the general requirements of judgment enforcement
and put some emphasis on the concept of public policy (ordre public). In the
following chapters this thesis undertakes a comparative analysis of Canadian and
Swiss law with regard to the enforcement of foreign judgments which are based on
foreign penal, tax and other public law. Although the legal roots of the "exclusionary
rule" of the two jurisdictions are quite different, the analysis shows that there are
striking similarities with respect to the results in individual cases.
Several justifications for the exclusionary rule have been given. Mostly, courts
have simply stated that the rule is about 200 years old and therefore so well
established that it cannot be given up. Another explanation for the exclusionary rule
holds that the flat refusal to enforce certain categories of judgments causes less
embarrassment at the international level than scrutinizing the foreign judgment under
the public policy doctrine. Some judges and scholars argue that the enforcement of
penal, tax and other public law is prohibited under the principle of territorial
sovereignty. After critically reviewing the different justifications, I conclude that none
of them is actually convincing.
Given the lack of an adequate justification for the exclusionary rule, I attempt to
outline how the scope of enforceable judgments could be expanded, considering the
peculiarities of both the Canadian and the Swiss legal systems. With respect to
Canadian law, I conclude that the principle of comity can serve as an apt basis for a
more generous attitude towards foreign tax claims and judgments. With regard to
Swiss law, I am of the opinion that the exclusion of all public law judgments is much
too broad. However, in the field of enforcement of tax judgments, Swiss courts would
have to be empowered by either a treaty or domestic legislation. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/5840 |
| Date | 05 1900 |
| Creators | Strebel, Felix D. |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 5617964 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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