Jurisdiction clauses commonly feature in high-value international contracts. Recently, these clauses are also increasingly utilised in international trust instruments. At common law, a contentious issue vis-à-vis exclusive jurisdiction clauses in trust deeds has been whether they should be upheld in the same way as their contractual equivalents. In obiter remarks in Crociani v Crociani, in 2014, the Privy Council stated that these clauses should be afforded less weight in trusts than in contracts. However, as this paper seeks to demonstrate, the reasoning underpinning the treatment of exclusive jurisdiction clauses in trust deeds in this manner is questionable. The paper's key contention is that exclusive jurisdiction clauses in trust deeds should be enforced in the same way as those in contracts. Accordingly, an exclusive jurisdiction clause in a trust instrument should be upheld, unless the claimant can establish a strong cause why the matter should be litigated elsewhere.

This article reviews recent cases from Canada, Australia, the United Kingdom, and the United States involving state immunity from execution and suggests the burden on creditors to disprove this immunity is excessively onerous. While the problem is much belaboured, few solutions have been explored or implemented. This article proposes that in the Canadian context, adjusting the evidentiary burden on parties to an execution immunity dispute would improve the ability of creditors to obtain fair payment from debtor states, without infringing state sovereignty.