Friday 20th October – Bringing it home: Are Canadian courts suddenly opening up to corporate liability for extra-territorial violations of human rights? by Geneviève Saumier

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.

IMPORTANT:

Due to security measures, access to Sciences Po buildings is restricted.

If you intend to attend the seminar, please send an email to filipe.silva@sciencespo.fr indicating your full name. Security officers will be provided with the list of participants.

Do not forget to bring a VALID ID.

The (private) politics of (legal) space – PILAGG programme for this academic year REVEALED!

Dear friends of PILAGG and private international law,

We are delighted to confirm that PILAGG seminars are back! The overarching theme of this year’s debate series is The (private) politics of (legal) space.

In case you are wondering what is that supposed to mean, please note that we will be focusing on narratives of international law and histories of global space. We will discuss exciting legal issues, such as spatial dynamics of accumulation (histories of international law and capitalism); we will try to identify the gender of space (identities, transnational communities) and the frontiers of human rights ; we will also touch upon the external and internal space (and global legal pluralism); and rediscover the local and the global (new translocalities) ; we will look closely at the cultural space and its tensions between homogenization and heterogenization ; « scapes » or globalized mental pictures of the social world (Appadurai) ; migration and border control AND MORE!

A fascinating strand of thought in this respect comes from Mariana Valverde ‘s Chronotopes of Law, in which she explores Jurisdiction, Scale and Governance (Routledge 2015).

Consider the following : (p82) : « struggles that historically and in the present are waged in a quiet and legalistic manner as fights about jurisdiction actually involve – and end up deciding – much larger extra-legal issues of power and authority ». … « jurisidction can be mor generally dscribed, from a sociolegal ,perspective, as ‘the governance of legal governance’ «   (p83)… « It would be highly inconvenient for the smooth functioning of the law if the how of governance, the qualitative question, were explicitly asked…(p84). The law of jurisdiction, in other words, … is a quite magical power to depoliticize governance » (p.84).

These observations come within a highly innovative framework for analysis of the spatio-temporal workings of law and governance.

We are still in a process of putting together all the bits and pieces for our upcoming events. But, as a TEASER, please find below the first draft of our programme (careful, this is subject to change).

– October 6th : Presentation and opening session (Legal definitions of space)

– October 13th : Darren ROSENBLUM

October 22nd : Geneviève SAUMIER : The Frontiers of Human Rights (a Canadian perspective) ***CONFIRMED

- November : Filipe de SILVA : Historical Capitalism and International law ***CONFIRMED

– November : Gunter FRANKENBERG

– December : Guillame LeBLANC

SO SAVE THE DATE !!