SCIENCES PO ECOLE DE DROIT: SEMINAIRE DE PILAGG
Bringing it home: Are Canadian courts suddenly opening up to corporate liability for extra-territorial violations of human rights?
Professor Geneviève Saumier (McGill University)
Discussant: Fabien Marchandier
Friday October 20th, 2017; Room 931, 14.45 – 16.45; C-building, 9 rue de la Chaise, 75007 Paris
Abstract: The Third Pillar of the UN Guiding Principles on Business and Human Rights prescribes that States must provide access to an effective judicial remedy to address business-related human rights abuses. Denial of access can result from either procedural or substantive barriers. Where the alleged human rights abuse took place in a foreign State, jurisdiction rules may exclude claims against foreign defendants or a court may decline to exercise jurisdiction on forum non conveniens grounds. Even if those procedural barriers can be overcome, substantive obstacles may remain if the claim depends on “piercing the corporate veil” or if the foreign applicable law provides no cause of action. These are well-known and well-documented blind spots of the private international regimes that govern cross-border litigation and that have stood in the way of remedies for corporate violations of human rights.
Canadian corporations have a poor reputation in terms of corporate violations of human rights abroad, most specifically in the extractive industry. A 2009 study revealed that Canadian mining companies had been involved in 33% of worldwide cases of alleged human rights and environmental violations over the preceding ten-year period. While the Canadian government has since sought to address this through a CSR Strategy targeted at the extractive sector, its approach has had no direct implications for access to judicial remedies. This marks a legislative blind spot, since attempts by foreign claimants to seek redress before Canadian courts during the same period had failed, often on jurisdictional grounds, but occasionally also on substantive grounds.
Despite this bleak landscape for corporate social responsibility, there are indications that the tide may be turning. A series of recent decisions by Canadian courts have reversed course, refusing to decline jurisdiction under forum non conveniens and allowing novel claims for direct liability of parent companies for acts of their foreign subsidiaries to go forward. This optimistic development is tempered by the fact that none of these decisions have moved beyond the preliminary stages and most are currently under appeal. Moreover, a recent decision, flowing from the Rana Plaza tragedy, refused to extend this newly-discovered openness to a claim based on supply chains.
The presentation will explore this evolving Canadian jurisprudence, assessing what might appear to be judicial activism in the face of legislative inertia, and analysing the impact it is already having on corporate behaviour by Canadian parent companies.
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