Professional Responsibility and the Defence of Extractive Corporations in Transnational Human Rights and Environmental Litigation in Canadian Courts
24(2) Legal Ethics (Forthcoming)
27 Pages Posted: 9 Mar 2021
Date Written: March 5, 2021
Lawyers defending extractive corporations in transnational human rights and environmental cases tend to reflect the dominant ‘resolute advocacy’ model of litigation, which directs lawyers to aggressively pursue clients’ interests though all available means. Is a different vision of advocacy more appropriate in this context? In answering this question, we look to the rule of law foundation of the ‘resolute advocacy’ model and note the ways in which rationales for aggressive litigation behaviour are pragmatic, contextual and contingent. From this observation, we argue that lawyers defending extractive corporations in transnational human rights and environmental litigation should adopt a model of ‘moderated resolute advocacy’. We ground this claim in the background context generated by the United Nations Guiding Principles on Business and Human Rights and the Sustainable Development Goals and in the barriers that plaintiffs face. The model we propose would not only emphasize existing obligations on lawyers not to generate unreasonable costs, create undue delay or advance unfounded legal claims but also promote an approach to litigation oriented towards the efficient determination of substantive claims on their merits. To practically instantiate this model, we propose a two-pronged approach that includes the development of a voluntary litigation code of conduct for defendant extractive corporations alongside legislative action to remove some of the legal obstacles for plaintiffs bringing these cases.
Keywords: Professional Responsibility, Moderated Resolute Advocacy; Transnational Human Rights and Environmental Litigation, Access to an Effective Remedy; United Nations Guiding Principles on Business and Human Rights; Sustainable Development Goals; Chevron Corporation; Araya v Nevsun
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