Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

Canadian law and practice over the past two decades has experienced a paradigm shift in its approach to cross-border litigation. Courts in Canada are more open to enforcing parties’ choices about foreign law and jurisdiction, enforcing foreign judgments and assisting in obtaining evidence in aid of foreign proceedings. It is this last example that is the subject of this article. 

After a brief discussion of the general process by which letters of request (also known as letters rogatory) are enforced in Canada, this article will examine the manner in which these rules have been applied in relation to entities other than traditional North American or British-style courts. The paper will go on to consider the role of letters of request in relation to the growing phenomenon of private international commercial arbitrations. This will provide a good illustration of, not only the liberalizing trend in Canada to the provision of judicial assistance, but also the limits of this trend. Although the circumstances in which Canadian courts will enforce letters of request from non-traditional bodies is still evolving, recent developments in Canadian law suggest that Canadian courts will enforce letters of request from an international arbitration indirectly where the request comes through a foreign court, and may even enforce such a request directly if the arbitral body has the authority under its empowering statute to do so or where the judicial system in the place of the arbitration is capable of responding to a similar request from Canada.

II. THE STATUTORY BASIS FOR ENFORCEMENT IN CANADA

Letters of request provide a foreign judicial body a means of gaining access to evidence outside of its jurisdiction through the assistance of Canadian courts. Letters of request are most often enforced in one of two ways: through treaties or through statute. Treaties or conventions set out specific diplomatic channels that must be followed prior to seeking assistance in the courts. Canada is a party to a number of bilateral conventions by reason of its historical relationship with Britain.1