International Corporate/Business Law
In Canada, there are four main structures through which a business may be carried on: sole proprietorships, partnerships, cooperatives and business corporations. Two types of partnerships are known to Canadian law: limited partnerships and general partnerships. The province of Québec, which has a civil law system, recognizes three types of partnerships: general partnerships (société en nom collectif), limited partnerships (société en commandite), and undeclared partnerships (société en participation). As incorporation is the structure most often favoured by non-residents wishing to operate a business in Canada, only the latter will be discussed.
It is important to note that unlike in many countries, there is generally speaking only one form of incorporation available in Canada. For instance, there is no formal distinction between public and private corporations such as in the United Kingdom (plc and ltd., respectively). Also, unlike in the United States where most companies are not incorporated federally, businesses have the option of choosing either a federal or provincial incorporation.
The Limited Liability Company (LLC) that is used in the United States does not exist in Canada. On the other hand, three Canadian jurisdictions (Alberta, British Columbia and Nova Scotia) recognize another type of hybrid company known as the Unlimited Liability Corporation (ULC). As the name states, the ULC’s shareholders have unlimited liability compared to the limited liability afforded by a regular corporation. Despite the liability and its treatment as a corporation for Canadian income tax purposes, the ULC is favoured by U.S. businesses to form a Canadian subsidiary because a ULC can elect to be treated as a flow-through entity for U.S. income tax purposes and certain benefits can be had under the Canada-U.S. Tax Convention. However, U.S. businesses that want to use a ULC should make sure that relevant tax law will provide them with these advantages in their particular circumstances.
Non-residents should keep in mind that a number of Canadian incorporation statutes impose certain residency requirements on directors. For example, the Canada Business Corporations Act and the Business Corporations Act (Ontario) both require that one quarter of the directors of a corporation incorporated under those statutes be Canadian residents. If there are less than four directors, at least one must be a Canadian resident. The residence of a Canadian corporation’s directors, as well as that of its shareholders, is also relevant for tax purposes. For example, corporations known as “Canadian-Controlled Private Corporations” (CCPC) can attract lower tax rates and the sale of their shares can be exempt from capital gains tax under certain circumstances. One of the requirements to qualify as a CCPC however, is that the corporation must neither be directly nor indirectly controlled by non-residents.
Canadian corporations (meaning corporations residing in Canada) are subject to tax on their worldwide income. In Canada, a corporation can be found to be a resident of Canada pursuant to subsection 250(4) of the Income Tax Act (Canada) or under common law principles. Subsection 250(4) deems a corporation to be a resident in Canada if it was incorporated in Canada after April 26, 1965 or if it was incorporated in Canada before April 27, 1965 and if during any tax year after April 26, 1965, it was a resident in Canada under common law principles or it carried on business in Canada. Under common law principles, the residency of a corporation is determined by looking at the place of the corporation’s central management and control. This means that a corporation is likely to be considered a resident of the country where the board of directors meet and hold their meetings. The result is that a corporation can be a resident of Canada even if it is not incorporated under Canadian laws.
For a more detailed information on Canadian corporations, please click here [Link Incorporations]
International Commercial Law
International Sale of Goods
Companies considering sales of goods overseas should be encouraged, before any relationship with a foreign representative is entered or any transaction takes place, to become familiar with multiple legal systems and important set of common practices used. For instance, a very common set of practices used in contracts, letters of credit, and shipping documents for international transactions is set forth in the Incoterms 2010, published by the International Chamber of Commerce, which define the responsibilities of buyers and sellers for delivery of goods, providing uniform terms to describe the allocation of costs and risks.
Convention on Contracts for the International Sale of Goods (CISG)
One important piece of international legislation to be aware of where goods are being sold internationally is the Convention on Contracts for the International Sale of Goods (the “CISG” or the “Convention”), which was developed by the United Nations in 1980 to facilitate international trade. The purpose is to provide a uniform international sales law that regulates the rights and obligations of buyers and sellers in international transactions for the sale of goods. It was implemented in Canada in 1992 and eventually incorporated into legislation by all Canadian provinces and territories. Since its creation, it has been adopted by over two-thirds of the world’s countries.
What does CISG govern?
The CISG governs contracts for the international sales of goods between private businesses. However, the CISG will not apply to sales of consumer goods, a sale by auction, a sale of ships/vessels, a sale of electricity or a sale of stocks/bonds. Generally speaking, the Convention addresses the formation of contracts (concluded by offer and acceptance) and the rights and obligations of the parties in a sale. For the seller, obligations include delivering the goods in accordance with the quality and quantity specified in the contract as well as the time and place for delivery. For the buyer, obligations include payment, taking delivery of the goods and examining the delivered goods.
It is important to note that the CISG does not govern the validity of the contract or any of its clauses, so for example local laws on matters such as fraud and unconscionability would still apply, nor does it address the legal question of transfer of ownership.
Other significant provisions of the CISG include remedies for breach of the contract, calculation of damages, anticipatory breach of contract, and exemption from liability for failure to perform.
The CISG automatically applies to contracts that are within its sphere of application although Article 6 of the Convention allows the parties to agree that it will not apply. If the parties do not expressly agree to opt out, the CISG will automatically apply to any contract for the sale of goods between parties whose principal places of business are in different CISG countries.
To Exclude or Not Exclude?
Despite its importance and wide application, CISG is not well understood by many people, including lawyers. It has become common practice to exclude the applicability of the CISG for many international sales contracts. There are several reasons why this may be so. First, there is currently a lack of guidance and commentary from the Canadian courts and thus the applicability and interpretation of the CISG remains uncertain. Second, lawyers for either side of the transaction may be unfamiliar with the terms of the CISG and the client may prefer to avoid the extra costs that will be incurred for the lawyer to become familiar. This will result in the parties favouring the domestic laws which they are more familiar with. Third, the parties may already have a well-established contractual relationship under a certain domestic law and opt out of implementing new rules under the CISG. Lastly, well info rmed parties may want to opt out of the CISG due to the potential for inconsistent interpretations of important clauses within the contract by courts in different countries.
The Choice of Law Trap
A common fundamental mistake parties often make is in assuming that designating a particular jurisdiction to govern the contract is sufficient to opt out of the Convention. However, this will only be the case if the choice of law provision expressly excludes application of the CISG. The following is a good example:
“This Agreement shall be governed by, and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada. The application of 1980 United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded”.
The parties may also opt out of specific provisions of CISG rather than opting out altogether. Again, this intention must be clearly expressed in the contract.
What it all means for your business
For a business perspective, it is important to understand the terms of the CISG and its potential implications when entering into a contract with a party in a different country. If you are considering entering into a contract for sale of goods outside of Canada, you will first want to ensure whether you wish for the Convention to your contract and whether it will provide you with the most favourable outcome. If you wish to opt out of CISG, or opt out of certain parts, you will want to ensure that it is done with considerable care.
If you are contemplating exporting products from Canada to a foreign country, you should be aware of potential trade restrictions. That is, you should know whether the products are regulated or prohibited from export or if an export permit is required. Generally, an export permit is required for products listed in the Export Control List and for exporting any goods or technology to countries listed in the Area Control List. Also, the origin of the goods you are exporting can have an impact on the permit requirements. You may also be subject to restrictions by other government departments and agencies such as the Canadian Food Inspection Agency.
Export Control List
There are 7 groups within the Export Control List:
- Dual use
- Nuclear Non-proliferation
- Nuclear-related Dual Use
- Miscellaneous Goods and Technology
- Missile Technology Control Regime
- Chemical and Biological Weapons Non-proliferation
You might think that the products in the Export Control List are mostly military goods simply by reading the names of the 7 groups. While some products in the List are related to military use, they also include products that are for civilian use. For example, forest products such as softwood lumber products and agricultural and food products such as peanut butter are included in the Export Control List.
For more information on the specifics, see the Export Control List.
Area Control List
Currently, there are only two countries that are included in the Area Control List: Belarus and North Korea. On May 7, 2016, the Government of Canada announced that the regulatory process to remove Belarus from the Area Control List will be initiated by Global Affairs Canada. For more information, see the News Release.
Preliminary points to consider:
- You should obtain a Business Number for Export/Import account from the Canada Revenue Agency.
Just as you should get a Business Number (BN) when doing business nationally, you must register and obtain a Business Number (BN) before you export or import commercial goods out of Canada. If you already have a BN, you can apply to add an import/export RM account identifier to your existing BN. For more information, see the Overview of Business Registration Online.
- You should identify the goods you want to export and the origin of those goods.
You should know more than the mere description of goods you want to export to other countries. You should identify the origin of those goods as it can affect the permit requirements. For instance, if you are trying to export United States’ origin goods to certain countries, you may need either an Individual Export Permit or a General Export Permit.
- You should determine whether the products you want to export are allowed to be exported.
Not all goods can be exported out of Canada. For instance, you cannot export illegal drugs and substances out of Canada. On related note, you should be aware that medications that are legal in Canada can be considered illegal in other countries (see point #7). Other less obvious goods include certain animals and animal parts such as black bear claws.
- You should determine whether the country you want to export to is under economic sanctions by the Government of Canada.
Even if the product is allowed to be exported out of Canada, economic sanctions against the country you want to export to may cause difficulties for you as an exporter. Be aware of the countries under economic sanctions (there are 21 of them including the two that are on the Area Control List). For more information, see the Types of Sanctions.
- You should determine whether the products you want to export are subject to the Export Controls.
As mentioned above, depending on the products you want to export and the country you want to export to, you may be required to obtain export permits. You need to apply for a permit to export to countries listed in the Area Control List and your application is reviewed on a case-by-case basis. Also, you may need export permits if the products you want to export are covered under the Export Control List or if the country you want to export to is under economic sanctions by the Government of Canada.
- You should determine whether the products you want to export are subject to restrictions by other government departments and agencies.
The Canada Border Services Agency is responsible for administering export requirements on behalf of other government departments and agencies. However, depending on the products you want to export, you may need permit and/or certificates from other government departments and agencies such as Health Canada and Natural Resources Canada. For more information, see the Reference List for Exporters.
- You should determine whether the products you want to export are allowed into the importing country.
Even if you obtain the necessary permits to export your products out of Canada, the receiving country might refuse to let them through if your products are restricted under their national import controls. To avoid unpleasant surprises, consult the World Customs Organization or the embassy/consulate of the country to which you will be exporting.
If you would like more information on export permits and export controls, Global Affairs Canada provides an excellent source. See the Export Controls Handbook
Letters of Credit
Essentially, a letter of credit is a document that facilitates international payments whereby a bank, on behalf of the buyer, guarantees to the seller that the bank will pay the seller up to the amount stated in the letter of credit. Letters of credit are often used in international sales of goods, where the exercise of contractual rights by the unpaid seller could be difficult for a variety of reasons, including the efficacy of the local judicial system, mistrust of the parties, language barriers, etc.
When a letter of credit is issued by a bank, the risk of non-payment is transferred from the seller to the bank. This is because the bank has an absolute obligation to pay the seller, irrespective of any disputes between the buyer and the seller, so long as the seller provides to the bank the pre-agreed upon documents specified by the letter of credit. The type of documents required will depend on many factors such as the type of goods, the size of the trade, and risks involved but documents commonly used include bills of exchange, bills of lading, waybills, packing lists and invoices. These documents will establish at a minimum that the promised goods have been delivered. This actually also protects the buyer because if the goods are not delivered, the seller will not, short of fraud, be able to obtain the documents it must provide to the bank in order for the bank to honour the letter of credit.
There are four main parties involved in a letter of credit transaction:
- Issuing bank – the bank (the buyer’s bank) that provides the letter of credit
- Applicant – the buyer of goods
- Beneficiary – the seller of goods
- Advising or confirming bank – the bank (the seller’s bank) that pays the seller
Here is what the letter of credit process looks like in a nutshell:
- Buyer located in Canada wants to buy goods from Seller located in Saudi Arabia
- Buyer applies to an issuing bank, Bank X, for a letter of credit.
- Bank X assesses the Buyer’s credit risk and upon approval, issues credit to a confirming bank located in Saudi Arabia, Bank Y.
- Seller ships the goods and prepares the documents required to receive payment.
- Seller submits the documents to Bank Y.
- Upon examination for compliance, Bank Y pays the Seller by debiting Bank X’s account.
- Bank Y forwards the documents to Bank X and debits the Buyer’s account.
Although the letter of credit process stays essentially the same, there are five commonly used types of letter of credit:
- Irrevocable/revocable – An irrevocable letter of credit cannot be changed or cancelled unless everyone involved agrees. A revocable letter of credit can be changed or cancelled by the issuing bank at any time and for any reason.
- Unconfirmed/confirmed – When a buyer arranges a letter of credit they usually do so with their own bank, known as the issuing bank. The seller will usually want a bank in its own country to check that the letter of credit is valid. For extra security, the seller may require the letter of credit to be confirmed by the bank that checks it. By confirming the letter of credit, the second bank agrees to guarantee payment even if the issuing bank fails to make it. So a confirmed letter of credit provides more security than an unconfirmed one.
- Transferable/back-to-back – Both are used when intermediaries are involved in a transaction. A transferable letter of credit can be passed from one beneficiary to others.
- Standby – It is an assurance from a bank that a buyer will pay a seller. The seller doesn’t expect to have to draw on the standby letter of credit, which thus serves as back-up to the principal agreed upon method of payment
- Revolving – It is a letter of credit that covers several transactions between the same buyer and seller.
Most commercial letters of credit are governed by a set of international rules developed by the International Chamber of Commerce (ICC). The rules are referred to as Uniform Customs and Practice for Documentary Credits (UCP). For more information, please visit the International Chamber of Commerce’s website.
International Litigation & Disputes
What is Private International Law?
Whether you are involved in a contractual dispute with a foreign entity, are thinking of suing a foreign defendant or are being sued by a party from another country, there are special considerations that come into play from a branch of law that few lawyers are truly comfortable with, known as PRIVATE INTERNATIONAL LAW (PIL). PIL is a mixture of provincial and federal laws, court cases and international legal instruments that is used to answer three essential questions:
- Which courts (domestic or foreign) have jurisdiction over the matter
- Whose laws apply to the matter
- Can a judgment from one jurisdiction be enforced in another jurisdiction?
In addition to answering the foregoing questions, a PIL lawyer will consider whether it is possible and if so, more advantageous to take a case before a foreign court or to apply foreign laws to resolve a multi-jurisdictional legal issue. Even if neither party is actually contemplating immediate legal action, knowing where it stands if it did go to court is helpful, if not crucial, for the effective conduct of negotiations. Finally, from a PIL perspective, “foreign” laws, “foreign” defendants and “foreign” courts do not necessarily refer to non-Canadian elements. PIL rules are just as relevant if a legal issue arises between a party based in Ontario and another based in, say, British Columbia or whenever there are connections to two or more provinces or territories.
Which Jurisdiction is Competent to Adjudicate a Dispute?
The leading case in Canada on the determination of proper jurisdiction in multi-jurisdictional matters – at least for actions framed in tort – is Club Resorts Ltd. v. Van Breda, a decision rendered by the Supreme Court of Canada in 2012. Van Breda involved personal injury claims by Canadian citizens brought against a number of defendants located in various jurisdictions following accidents suffered while vacationing in the Caribbean.
It is generally accepted that, at common law, a Canadian court will have jurisdiction over a claim in tort when there is a “real and substantial connection” between the issue in the action, the damages suffered and/or the defendant, and the forum where the claim is being brought. Prior to Van Breda and some of the court decisions that preceded it, judges had to grapple on a case-by-case basis with the factors to be used to establish such a connection. In Van Breda, the SCC identified four connecting factors, any one which is sufficient to establish a presumption that a “real and substantial connection” exists. These factors are the following:
- the defendant is domiciled or resident in the province where the suit is being brought;
- the defendant carries on business in the province where the suit is being brought;
- the tort was committed in the province where the suit is being bought; and
- a contract connected with the dispute was made in the province where the suit is being brought.
While the SCC stated that the list was not meant to be exhaustive, courts have been reluctant to extend it.
Van Breda also clarifies the methodology used to come to a final determination of a court’s jurisdiction. As a first step, the plaintiff is required to establish the existence of one or more of the factors so as to trigger a presumption of jurisdiction. If no presumptive connecting factor (whether listed or new) applies, the court should not assume jurisdiction pursuant to the “real and substantial connection” test for jurisdiction (although the court may have jurisdiction on other grounds). As a second step, if a plaintiff is successful in establishing a presumptive connecting factor, the defendant has the opportunity to try to convince the court that such factor does not establish a strong enough relationship between the subject matter of the litigation and the forum. As a third and final step, if the defendant is unable to rebut a presumption of real and substantial connection, it may still plead the doctrine of forum non conveniens, i.e. the defendant could argue that although the court basically has jurisdiction (this is referred to as jurisdiction simpliciter), it should decline to exercise that jurisdiction in favour of a more appropriate forum. In practice, steps 2 and 3 are taken together.
If legal action is brought pursuant to a contract, the Van Breda approach may apply, although in practice the contract will contain an express choice of law clause.
Which Jurisdiction’s Laws Apply?
It has been our experience that many lawyers treat the question of applicable law and applicable jurisdiction as though they were one and the same. However, these are two distinct issues, each with their own sets of rules. A conflict of laws exists when there a matter in dispute that is potentially subject to the laws of two or more jurisdictions AND the application of these laws lead to different outcomes. For example, because Ontario’s general limitation period is so short (typically two years) compared to that of other jurisdictions, establishing that foreign law applies in an action brought before an Ontario court can mean the difference between having and losing your right to sue.
Which law is applicable to a tort?
As a general rule, the applicable substantive law in a tort case is determined by the lex loci delicti commissi (the laws of the place where the tort occurred) rather than the lex fori, that is, the laws of the court seized with the matter. This was decided by the Supreme Court of Canada in the 1994 case of Tolofson v. Jensen, which has been quite scrupulously followed by Canadian courts.
Which law is applicable to a contract?
Ideally, the parties will have entered into a written agreement containing an unambiguous choice of law clause. This will often avert the question of which law is to be used to resolve contractual disputes. The most basic form of an “applicable laws” clause reads as follows:
“This contract shall be governed by the laws of [insert name of province, state or country].”
A better clause would take into account the possibility that the chosen law could, through the application of its own conflict of laws rules, actually lead to the unintended application of the law of some other jurisdiction. Such a clause would read as follows:
“This contract shall be governed by the laws of [insert name of province, state or country] without regard to its conflict of law rules.
However, where there is no such clause or where a party takes an aggressive stance and refuses to acknowledge the law identified by such clause, resort must be had to the rules of PIL.
The rule to determine which law is applicable to a contractual dispute was laid out by the Supreme Court of Canada in 1967 in the case of Imperial Life Assurance Co. of Canada v. Segundo Casteleiro y Colmenares. Known as the “closest and most substantial connection” test, the goal is to determine the jurisdiction that has the best tie to the dispute through the consideration of a series of factors, including:
- the domicile and residence of the parties;
- the national/international character of a corporation and the place of its principal business;
- the place the contract was made and where it is to be performed;
- the style in which the contract is drafted, such as whether the language is appropriate for one system of law as opposed to another;
- the fact that certain terms are valid in one system of law and invalid in another;
- the economic connection of the contract to another transaction;
- the nature and subject matter of the contract;
- the head office of a corporation; and
- any other fact which serves to localize the contract.
The applicable law will be the law of the jurisdiction identified by the Court through the application of the foregoing factors.
Other rules and exceptions
Even if PIL rules point to the application of a foreign law, it is universally recognized principle that a court will always apply its own rules of procedure. The question is then begged as to which rules are substantive in nature and which rules are procedural, and the results can sometimes be surprising. For example in the landmark case of Tolofson v. Jensen, the Supreme Court of Canada decided that the application of a limitation period was a question of substantive law, and hence determined by the lex loci delicti rule, and not a matter of procedure. This is interesting as it reverses the common law. On the other hand, in civil law countries, limitation periods are a matter of substantive law since they extinguish rights rather than simply preventing the holder of rights from bringing suit.
There are also rules of PIL to the effect that certain laws are of ordre public (literally, public order), meaning that they apply notwithstanding the parties’ choice of law because a court has no choice but to apply them. An example of this is the Arthur Wishart Act of Ontario, which regulates franchise contracts, including by imposing disclosure requirements on the franchisor. In fact, such law effectively moots the application of PIL rules since it voids any provision in a franchise agreement purporting to restrict the application of Ontario law or ousting the jurisdiction of Ontario courts.
International Trust & Estate Planning
Since 1973, the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will has allowed a Will to be recognized internationally with certain formalities common to all jurisdictions which have adopted the Convention. The Convention provides that courts should respect the law of the jurisdiction where the Will was drafted. As such, the main advantage of the international Will is that it eliminates the conflict of laws issue relating to the determination of formal validity of a Will under foreign law. The Convention has been incorporated in Ontario under the Succession Law Reform Act.
Form, Execution & Certificate
With respect to form,
- The Will must be in writing;
- It need not be written by the testator himself or herself; and
- It may be in any language, by hand, or by any other means.
With respect to witnessing and attestation,
- The Will must be executed in the presence of three witnesses, two acting as witnesses only, and the third being a person authorized to act in connection with International Wills, such as a licensed lawyer or, in Québec, a notary (the “Authorized Person”);
- The testator must declare that he or she intends the document to be his or her Will and that he or she knows the contents thereof; and
- The witnesses need not have any knowledge of the contents of the Will.
With respect to signing,
- The signatures of the testator, the witnesses and the Authorized Person must appear at the end of the Will;
- The testator must sign every page of the Will; and
- Every page must be numbered.
The Convention requires the Authorized Person to complete a certificate in prescribed form.
Although the Convention provides some uniformity, it is only in force in a short list of jurisdictions. While it is in force in countries such as Belgium, France, Italy and Portugal, it is not ratified in the many of the states in the United States nor in the United Kingdom. In Canada, British Colombia, Québec and the Territories have not ratified the Convention.
International Law Practice Leader
+ 1 (613) 747-2459 ext. 308