To Boldly Go Where No Court Has Gone Before: Canada Paves the Way for Transnational Litigation Against Corporations for Human Rights Abuses?

Abstract

Some commentators have recently proclaimed the U.S. Alien Tort Claims Act to be dead. In Nevsun Resources, the Canadian Supreme Court took a seemingly bold step in providing access to justice to victims of human rights abuses against corporate entities, presumably to partly fill this void. This decision comes at an arguably propitious time, when the corporate social responsibility (“CSR”) movement is in full swing, but when the U.S. Supreme Court has precluded suits against corporate wrongdoers for extraterritorial torts and the prospect of universal civil jurisdiction is waning globally. I argue that Nevsun constitutes a welcome development, potentially providing more effective and meaningful avenues to remedy overseas human rights violations, though it also presents some challenges. I attempt to situate that decision critically within the CSR landscape and assess what role relevant international law principles play in a post-Nevsun universe. Part II explores the prospect of enlarging extant liability schemes in international law to better regulate corporate wrongdoing. It canvasses various substantive issues with a view to propping up corporations as rights- and obligations-bearers in international law and discusses important developments in the business and human rights/CSR agenda. It then moves on to the implications of using investor-state arbitration and domestic legal systems to implement transnational legal corporate responsibility before identifying a broader impetus for developing a general regime of international civil individual responsibility, or at least a regime to govern corporate wrongdoing. Part III investigates the potential transformative impact of Nevsun, first by recalling the legal situation in Canada prior to the judgment and then by delving into the judgment. This part concludes by highlighting some of the positive and negative implications of the decision. Part IV briefly addresses some of the challenges going forward in the post- Nevsun legal universe, focusing primarily on evidentiary, methodological, and substantive issues. This contribution fits within a broader project in which I attempt to articulate the foundations of a general legal regime governing individual civil responsibility in transnational law.

Keywords: corporate social responsibility, extraterritorial torts, investor misconduct, investor liability, international responsibility, transnational law, Supreme Court of Canada, Supreme court of the United States, international responsibility, customary international law

JEL Classification: K00, K13, K22, K33, K41, K19, K39, M14