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Article 3136 C.c.Q. is a departure from the general rules of jurisdiction applicable to a Quebec authority. Based on the principle of necessity and in the absence of an appropriate forum, it authorizes an authority to exercise jurisdiction in relation to a matter not subject to its direct jurisdiction when it is impossible or unreasonable for the parties to access a foreign authority and when the litigation has a sufficient connection with Quebec. Article 3136 thus confers a discretionary jurisdiction on a Quebec authority. This discretion is limited by the definitional elements expressed in article 3136 and has been further narrowed by an inappropriate interpretation by the Court of Appeal in Lamborghini. The critical factor is that necessity jurisdiction implies that the litigation is subject to an effective remedy in the Quebec forum. Availability of an effective remedy renders reasonable the exercise of necessity jurisdiction and the requirement that foreign litigation be instituted, unreasonable. However, the factor of remedy is ignored, or without expression, in both doctrine and jurisprudence. Supported by a comparative approach between the civil law and the common law, the first part presents a general analysis of this exceptional rule with particular attention to the Swiss law which inspired the drafters of article 3136. In the second part, article 3136 is considered in context with the general provisions of the Code and the legislative history of the provision is clarified. The third part analyzes the definitional elements of the article and the last part examines its application as reflected in the relevant jurisprudence.
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The Preliminary Provision of the Civil Code of Québec refers to the concept of jus commune. Yet to just which jus commune is it referring ? The author reviews the historic multiplicity of jura communia in Europe, including the jus commune, the common law and the general law of France. The latter has become transnational in character with the French Civil Code as an important contemporary element, but also including the general principles of law. As such, the Civil code should thus take its place within the framework of a much broader transnational legal tradition.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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The appeal plays a central role in the modern Canadian criminal justice system. Appellate rulings are the primary means by which, through the assessment of trial error, substantive criminal law and the law of evidence evolve and develop. Scarcely more than a century ago, however, formal criminal appeals were unknown to Anglo-Canadian criminal procedure. What provoked the creation of a criminal appellate procedure? Why and how did criminal appeals emerge in Canada at the end of the 19th century? Answers to these questions can enrich our appreciation of the essential nature and function of the modern criminal appeal. This article examines the 19th century English debates on the establishment of a criminal appeal and places these debates in the context of the loss of the old forms of jury control in the 18th century. The author shows that the emergence of the criminal appeal was closely tied to a 19th century debate between the judges of England and members of the legal profession about the frailties of trial by jury and the need for a new means of trial error correction. The author argues that, accordingly, the modern criminal appeal is best understood as, at core, a mechanism of jury control. [PUBLICATION ABSTRACT]