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Forum Non Conveniens and Judicial Corruption: Key Developments at BCCA

Legal Gavel (27571702173)

By Arron Chahal, JD candidate, University of Toronto Faculty of Law

A pair of 2017 decisions by Canadian courts have made it harder for Canadian companies to avoid liability for human rights violations allegedly committed by their subsidiaries in foreign jurisdictions.

When actions are brought against corporations on this basis, the corporation will often argue that the case should be heard in the jurisdiction in which the alleged human rights violation occurred. Two recent decisions by the British Columbia Court of Appeal (BCCA) suggest that judicial corruption in the foreign jurisdiction will play a significant role in determining how successful this argument will be.

The doctrine of forum non conveniens “is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction”, where another forum is better suited to hear the case.[1] International corporations have used forum non conveniens to avoid having complaints against them heard in Canadian courts. This approach benefits corporations where the judicial system of the relevant foreign jurisdiction is not independent, particularly where the state’s interests align with those of the corporation. Therefore, corporate defendants subject to allegations of international harm may seek to stay a claim on the grounds of forum non conveniens.

The current test to stay an action on the basis of forum non conveniens comes from the Supreme Court of Canada in Van Breda v. Village Resorts Ltd and its companion decision Black v. Breeden. This test provides that the defendant has the burden to show that another jurisdiction must be “clearly more appropriate,”[2] and in weighing the evidence, the court must consider “all relevant concerns and factors.”[3]

Before, the 2017 decisions of the BCCA in Garcia v. Tahoe Resources Inc. (“Tahoe”) and Araya v. Nevsun Resources Ltd. (“Nevsun”) “there [was] no binding authority” on how judicial corruption was to be incorporated into a forum non conveniens analysis.[4] In those cases, the BCCA rejected applications to stay the actions on the basis of forum non conveniens. In doing so, the Court explained how judicial corruption factors into the forum non conveniens analysis, concluding that judicial corruption in Guatemala and Eritrea was significant enough as to justify refusing to stay the proceedings on the grounds of forum non conveniens.

Background: Tahoe and Nevsun

In Tahoe, seven Guatemalan men are suing the Canadian mining company for injuries they allegedly suffered during a violent suppression of a protest at a mine in Guatemala that is wholly owned by one of Tahoe’s subsidiaries.[5] The BCCA overturned the lower court’s decision granting Tahoe’s application to stay the action on the basis of forum non conveniens.

In Nevsun, the plaintiffs claim that they were subject to forced labour at the Bisha Gold Mine in Eritrea, which Nevsun Resources partially owns.[6] A detailed overview of the facts has been provided in a previous blog post. The BCCA upheld the British Columbia Supreme Court’s ruling, rejecting an application to stay the action on the basis of forum non conveniens.

BCCA Accepts General Evidence of Judicial Corruption

In each case, the plaintiffs introduced general evidence of judicial corruption in the host countries – Guatemala for Tahoe and Eritrea for Nevsun – that was accepted by the BCCA, demonstrating a new willingness to admit less tailored proof of judicial corruption abroad. In Tahoe, the Court found that the evidence of the expert witnesses on Guatemala’s judicial system was only “general in nature,” as the “appellants ha[d] not produced detailed evidence showing instances where the Guatemalan judiciary ha[d] been corrupted by the power of foreign corporations.”[7] In spite of this weakness, the Court found that the evidence was sufficient to establish that “corruption in the Guatemalan justice system is widespread.”[8] However, the Court tempered this finding by noting that “broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight.”[9]

In Nevsun, the BCCA again admitted general evidence of judicial corruption. The plaintiffs submitted secondary reports by organizations such as Human Rights Watch to show that they would not receive a fair trial in Eritrea. The Court found that these reports, despite their general nature, could be used “for the limited purpose of providing a social, historical and contextual framework.”[10] The Court further explained that even though the reports did not allow for testing of “the facts and opinions expressed through cross-examination or otherwise,” they could be admitted to establish judicial corruption because they were the only means of adducing the necessary “social” evidence.[11] Recognizing how difficult it is for plaintiffs to provide detailed, first-hand evidence of corruption by state actors, the BCCA was flexible in the evidence it would accept to establish judicial corruption.

The Weight Given to Judicial Corruption

Before Tahoe and Nevsun, it was unclear how judicial corruption would factor into the forum non conveniens test. In Tahoe, the BCCA found that evidence of judicial corruption only has to show that there is “a real risk that the alternate forum will not provide justice.[12]” Furthermore, this factor is to be considered alongside all other relevant factors “with the overall burden on the defendant to establish that the proposed alternate forum is in a better position to dispose fairly and efficiently of the litigation.”[13]

The BCCA in Nevsun not only endorsed this test, but found that judicial corruption in Eritrea outweighed “the expense, inconvenience and practical difficulties of mounting a trial in British Columbia” when deciding not to grant a forum non conveniens action. The Court explained that “the cost, inconvenience and expense that would be involved must be looked at in the light of the grave allegations that the plaintiffs’ claims comprehend.”[14]

Conclusion

The Tahoe and Nevsun decisions demonstrate a new, flexible approach to the types of evidence that will be admitted to establish judicial corruption in a foreign court and the significance of this evidence to the forum non conveniens analysis. This flexibility will make it easier for plaintiffs to combat stays on the grounds of forum non conveniens. In this way, the BCCA’s decisions in Tahoe and Nevsun have made it significantly more difficult for Canadian companies to use forum non conveniens to avoid liability for the actions of their subsidiaries in allegedly corrupt foreign states. With this procedural hurdle weakened, international corporations that disregard human rights abroad will have more difficulty avoiding liability for their actions.

AC

 

References

[1] Van Breda v. Village Resorts Ltd, 2012 SCC 17 at paras 103 and 104, [2012] 1 S.C.R. 572 [Van Breda].

[2] Van Breda, supra at 108.

[3] Van Breda, supra at 109.

[4] Garcia v. Tahoe Resources Inc, 2017 BCCA 39 at para 124, [2017] 5 WWR 631 [Tahoe].

[5] Tahoe, supra at 1.

[6] Araya v. Nevsun Resources Ltd, 2017 BCCA 401 at paras 2-3, 285 ACWS. (3d) 847 [Nevsun].

[7] Tahoe, supra at 109.

[8] Tahoe, supra at 113.

[9] Tahoe, supra at 125.

[10] Nevsun, supra at 113.

[11] Nevsun, supra at 98.

[12] Tahoe, supra at 124.

[13] Tahoe, supra at 120.

[14] Nevsun, supra at 118.

By |February 20th, 2018|Blog|

The ICC’s Africa Problem:
What to make of Burundi’s exit

International Criminal Court building (2016) in The Hague

By William Onyeaju, JD candidate, Osgoode Hall Law School

On October 27, 2017, the Republic of Burundi became the first country to leave the International Criminal Court (ICC). As one Burundian activist lamented, “The decision to withdraw Burundi from the Rome Statute comes at a time when the machine continues to kill with impunity in Burundi. Today, Burundian justice, as it is so called, has lost contact with life. It has become a mere tool of repression of any dissenting voice.” In contrast, a Burundian government spokesman called the withdrawal “a great victory for Burundi because it has defended its sovereignty and national pride.”

About the ICC

The ICC was created by the Rome Statute in 2002 to try individuals for war crimes, crimes against humanity, and genocide. Generally, the ICC takes on those cases that participant countries are unable or unwilling to handle domestically. Of the 123 countries that are State Parties to the Rome Statute, 33 are from Africa. In the fight against impunity, the ICC has brought charges against high-profile individuals, ranging from warlords to heads of state, including Joseph Kony (Ugandan rebel leader), Omar al-Bashir (President of Sudan), Muammar Gaddafi (former leader of Libya), and Laurent Gbabgo (former President of Côte d’Ivoire).

The ICC was established to ensure “that the most serious crimes of concern to the international community do not go unpunished.” Burundi’s departure threatens to hamper the ICC’s work, not only within that country’s borders, where leaders stand accused of serious human rights violations, but also across the African continent. Its withdrawal has only served to exacerbate tensions between the ICC and Africa, where countries are increasingly turning their back on the institution.

Africa and the ICC

The ICC has been disparagingly labelled the “African court”, with critics alleging it disproportionately targets African countries while ignoring serious human rights abuses in other parts of the world. Critics point to the fact that ten out of the eleven current investigations at the ICC involve African countries, and that most of those indicted in its two-decade history have been from the continent. (However, as we will see below, this criticism appears to be at least partly misguided.)

Things came to a head in 2013, after the ICC indicted Kenya’s sitting President, Uhuru Kenyatta, and Vice-President, William Ruto, for crimes against humanity during the 2007 Kenyan elections. Kenya’s leaders accused the ICC of targeting Africans, with Kenyatta going so far as to call the ICC “a toy of declining imperial powers.”

Following the indictments, leaders at an African Union summit in 2013 unanimously agreed that no sitting African head of state should stand trial during his or her tenure, further expressing their support for Kenya’s embattled politicians. Ethiopia’s Prime Minister said, “On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations.”

The Threat of Other Departures

Shortly before Burundi’s withdrawal, South Africa’s ruling African National Congress also announced that it was planning to pull out of the ICC. This was in response to the court’s ruling that South Africa had violated its ICC obligation to arrest Sudanese president Omar al-Bashir, who had visited the country the previous year. al-Bashir had been indicted by the ICC in 2009 for crimes against humanity, war crimes and genocide relating to the Darfur conflict. In a surprising turn of events, in 2017 the South African High Court declared the government’s withdrawal announcement not valid due to lack of parliamentary approval, leading the government to rescind its planned exit. As of 2018, South Africa’s long-term future as a signatory of the Rome Statute remains uncertain.

At one point, The Gambia also threatened to exit the ICC, following the lead of Burundi and South Africa. In late 2016, Gambia’s then-Information Minister described the ICC as “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” However, after a new government was elected in 2017, The Gambia announced it will retain its membership with the court.

Rumblings of further African departures persist, although so far no countries have taken any meaningful steps towards doing so.

Understanding the Criticism

The criticisms of the former Gambian Information Minister, while hyperbolic, may be partially born out of frustration with perceived geopolitical biases at the ICC. Some of the world’s most powerful countries, including the United States and Russia, did not ratify the Rome Statute, and so are largely outside the court’s jurisdiction. African governments also point to conflicts and grave human rights situations in countries such as Venezuela, Iraq, and Myanmar which have not led to ICC indictments.

The ICC has defended itself against these criticisms by stating that the victims, to whom they are providing justice, are Africans, and that indictments by the ICC come from referrals to the court by African governments. For instance, the governments of Uganda, Mali and the Democratic Republic of Congo have referred cases and assisted with investigations that have led to convictions. The current chief prosecutor of the ICC (and Gambian national) Fatou Bensouda has said, “Any time I hear this about ICC targeting Africa, ICC doing double justice (standards), it saddens me, especially as an African woman.” She went on to say, “Most of these conflicts are happening on the continent … The ICC’s concentration on Africa is always a result of the engagement of the African people with ICC.”

Burundi’s Withdrawal from the ICC: Understanding the Context

In October 2016, Burundi’s parliament voted by a large majority to exit the ICC, leading to Burundi’s withdrawal in the fall of 2017. Burundi’s exit from the ICC came at a pivotal time in the country’s history. After decades of conflict between ethnic Tutsis and Hutus, the country was plunged into a twelve-year civil war which lasted until 2006. The end of the civil war ushered in multi-party elections with Pierre Nkurunziza (a former Hutu rebel leader) becoming Burundi’s new president. However, in 2015, Nkurunziza’s decision to seek a controversial third term in office sparked a new crisis which led to attacks on human rights.

According to a United Nations Commission of Inquiry, there are reasonable grounds to believe that crimes against humanity, such as extrajudicial killings, torture and sexual violence, have occurred. An estimated 500,000 refugees have fled the country. Investigations by Human Rights Watch (HRW) suggest that youth members of the ruling party, the Imbonerakure, are some of the main instigators of the violence. HRW’s research further indicates that Burundian police and intelligence officers are utilizing the Imbonerakure to identify opponents of the regime who have then been tortured and, in some cases, killed.

The timing of Burundi’s exit suggests the decision was driven by apprehension regarding international condemnation for human rights abuses, and the looming possibility of an ICC investigation. If this was Burundi’s strategy, it was ineffective. On October 25, 2017, the ICC opened an investigation into the Burundian crisis, asserting that the court had jurisdiction over human rights violations which occurred while Burundi was still a State Party.

Burundi stands alone (for now)

Burundi’s departure from the ICC has added another dimension to the sometimes difficult relationship between the court and the African continent. Although Burundi’s relatively small size may lead to perceptions that the country is less influential than other countries in the region, its exit can still be seen as another blow to the ICC’s legitimacy in Africa.

Meanwhile, many African states, including Nigeria, Tanzania, Botswana, Senegal, and Sierra Leone, have re-affirmed their commitment to the ICC. Their support suggests that calls from African governments to leave the ICC may be the statements of a “vocal minority.” With The Gambia rescinding its withdrawal, and with South Africa’s future at the court uncertain, it remains to be seen what kind of precedent the Burundi withdrawal will actually set.

WO

By |January 26th, 2018|Blog|

Legal Literacy in the Digital Age

Sample search for legal information.

Pictured: the future of legal access?

 

By Katherine Golobic, JD candidate, University of Toronto

Cody (not her real name) is a PhD student renting a basement apartment in Toronto. She struggles to balance her academic workload with two jobs and endless personal obligations. One evening in early December, her landlord came over to complete some repairs. During the visit, Cody introduced the landlord to her fiancée, Ellen. Cody could immediately tell that the landlord was not comfortable with their relationship, and he left soon after the introduction.

In the weeks that followed, Cody noticed that the landlord became increasingly negligent in his duties – he would wait days before replying to her messages and rarely acknowledged her maintenance requests. Cody is certain that her landlord’s behaviour has changed since his visit in December.

A few weeks ago, Cody’s hot water stopped working. She sent the landlord multiple urgent messages and received only vague replies stating that he was out of the country. The lack of hot water has forced Cody and her fiancée to shower at friends’ homes and at a local gym. Neither Cody nor her fiancée believe they have the resources to find another apartment or access legal help. They were not even aware that a legal remedy for their problem might exist. Feeling overwhelmed and at her landlord’s mercy, Cody wishes that she could access definitive answers and solutions without spending inordinate amounts of money or wasting time in a legal system that she does not trust to begin with.

 

Legalese, or Legal ease?

Cody’s story (some details have been modified to protect the individuals involved) exemplifies the threats to personal welfare that may arise where individuals lack knowledge about their rights or the availability of legal aid services. According to the Canadian Bar Association (CBA)’s 2013 Reaching Equal Justice Report, over a three-year period of time, 45 per cent of Canadians will experience a legally relevant event. Research has also shown that legal issues tend to “cluster” and disproportionately effect marginalized people (who also tend to be the least well-informed about the justice system).2 For Cody and other vulnerable Canadians, the access to justice crisis is far more complex than merely overcoming economic barriers to legal aid. It lies in a fundamental lack of public legal education. This often manifests itself in distrust of the judicial system, as well as the perception that the law only works for those with a certain degree of social or economic capital. As Cody’s story demonstrates, many people who experience legal problems may even fail to identify them as such. In such cases, lack of knowledge about one’s rights effectively nullifies them.

Research has shown that Canadians tend to view the justice system as untrustworthy, person-dependent, and difficult to navigate. The most commonly cited barriers to access include language, literacy, education, and disability. However, in most circumstances, the absence of basic knowledge of one’s rights is the largest initial hurdle.3 While lack of information is not the sole factor contributing to the realization of legal rights, addressing it may prove to be an efficient and cost effective strategy.

The Digital Future is Now

Comprehensive expansion of public legal knowledge should be as uniform as it is robust, in order to account for the diverse needs of those it serves. Digital technologies and internet platforms are well suited to such a role. According to the Canadian Internet Registration Authority, Canadians are among the top internet users globally, with over 87 per cent of Canadian households having access to online services.4 Mobile and web-based applications have the potential to educate and empower even the most remote citizens at every stage of the legal process. Efforts are currently underway to integrate new technologies into every step of the legal process. The CBA’s 2013 report outlines over thirty distinct targets to be reached between 2020 and 2030,5 including the use of technology in dispute resolution6 and the integration of online legal education into the delivery of services.7

Globally, Canada still trails behind many members of the European Free Trade Association and other developed nations in the accessibility, affordability, and timeliness of its civil justice system.8 While the CBA’s action plan involves harnessing the power of well-established technologies such as the internet, telephone, and audio-visual technology, on the international stage even more innovative projects are underway.

Tech Companies Take the Lead

Private organizations both within and outside Canada are shaping smart phones, cloud computing, and social media into useful tools for citizen engagement with the civil justice system.9 One example is LegalSwipe, a mobile application that provides public legal education and builds community engagement. While the developers concede that only a lawyer can provide legal advice, their goal is to inform citizens of their rights instantaneously and in plain language. The company also operates a not-for-profit called The LegalSwipe Foundation, which offers free legal rights workshops.

Other organizations are challenging ideas of access at even more complex stages of the legal process. The web-based “e-negotiation” application Smartsettle, developed in Vancouver, tackles mediation and dispute resolution, even in cases of multiple parties and/or issues. In the UK, a legal artificial intelligence tool called CaseCrunch is making legal decision predictions with alarming accuracy, exceeding the predictions of lawyers by more than 20 per cent.

Legal Literacy and Digital Literacy: Paths Forward

Ideally, applications such as these will reduce delays through the early management of disputes and help to overcome physical and social isolation from the justice system. However, it remains important to consider inequalities in technological literacy and distribution, as well as ideological backlash from those concerned that technological determinism will become the dominant trend in solving the legal aid crisis.13

These fears are not unwarranted. Many of those who lack access to justice are vulnerable citizens, and saturating the justice system with technological developments could exacerbate its complexity for this population. This demographic also tends to prefer acquiring legal advice from a human.14

Anticipating these issues before they arise and accommodating them will be no easy task, particularly because both traditional and modern approaches face the challenge of ensuring uniformity of information within and across jurisdictions. Nevertheless, a healthy interplay between law and technology can create more opportunities for public participation in the justice system and help to ease the burden of facing such a complicated system in complete isolation.

KG

 

By |January 19th, 2018|Blog|

Access to Abortion:
An International Human Rights Perspective on Canadian Law

Logo for the Committee on the Elimination of Discrimination against Women (CEDAW)

Logo, UN Committee on the Elimination of Discrimination against Women (CEDAW)

By Isabel Dávila, J.D. candidate, Osgoode Hall Law School

Canadian abortion policy historically derives both from case law and international instruments. In 1969, Parliament partially legalised abortion under s. 251 of the Criminal Code, which permitted abortion as long as a Therapeutic Abortion Committee decided the abortion was necessary for the woman’s health. In 1981, Canada ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which sets out a woman’s right to reproductive choice, although it does not specifically refer to a right to abortion.

The ratification of CEDAW was followed shortly by the 1982 adoption of the Canadian Charter of Rights and Freedoms. The Charter, combined with CEDAW and other new legal developments, opened up the possibility of a Supreme Court challenge to Canadian abortion laws. This challenge was eventually launched by famed Montreal physician Henry Morgentaler in the late 1980’s.

Dr. Morgentaler had founded the first freestanding clinic to offer safe abortion services in Canada in 1968. In 1970, the clinic was raided by police and he was charged with performing illegal abortions. Over the following decades, he was charged several times more, at one point serving ten months in jail. Then, in R v Morgentaler [1988] 1 SCR 30, Morgentaler’s appeal of his most recent criminal conviction led the Supreme Court to strike down s. 251 of the Criminal Code. This meant the full decriminalization of abortion in Canada.

Nevertheless, women continue to face many barriers to accessing abortion. According to constitutional law expert Martha Jackman,

Few Canadian hospitals provide abortion services, with most of these located in urban areas near the US border. The process for obtaining an abortion, wait-times, gestational limits, and the availability of counselling services vary greatly between provinces/territories and from hospital to hospital. Uninformed and anti-choice hospital staff members and health care professionals create additional barriers for women seeking abortions.[1]

Similarly, in 2016, the CEDAW Committee, a UN human rights body that monitors implementation of the CEDAW Convention, raised concerns that, even as Canada had taken “measures taken to facilitate access to legal abortion services,” there remained significant disparities in access across the country. The Committee recommended that Canada: “a) Ensure access to legal abortion services in all provinces and territories; [and] b) Ensure that the invocation of conscientious objection by physicians does not impede women’s access to legal abortion services.”

Other UN human rights bodies have declared that the denial of abortion can constitute a form of torture under the UN Convention Against Torture (CAT), which Canada ratified in 1987. In April 2016, the UN Working Group on Discrimination Against Women in Law and in Practice observed that “[i]n some situations, failure to protect women’s rights to health and safety may amount to cruel, inhuman or degrading treatment or punishment or torture, or even a violation of their right to life.” Furthermore, “[t]he Committee Against Torture and the Human Rights Committee have determined that, in some cases, being forced to carry an unwanted pregnancy to term amounts to cruel and inhuman treatment.” More recently, the CEDAW Committee’s general recommendation No. 35 stated,

[v]iolations of women’s sexual and reproductive health and rights, such as […] denial or delay of safe abortion and post-abortion care, […] abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.

Thus, there is a significant possibility that Canada’s current practice on the provision of abortion services does not comply with its international human rights obligations. (For more on the role of international law in the domestic context, readers are encouraged to check out a recent CLAIHR overview on applying international law in Canada.)

Improving Access

Several jurisdictions in Canada have implemented plans to improve access to abortion. Ontario passed a bill in late 2017 to forbid anti-abortion protests near clinics, with the aim of protecting patients from harassment and violence. In September, the premier of Nova Scotia announced a plan to implement universal cost coverage for the medical abortion drug Mifegymiso; since November 2017, women are now able to access reimbursement for the cost of the pill. This brings Nova Scotia in line with existing policies in New Brunswick and Alberta.

The Canadian government can also take action to continue these positive trends by ensuring that provinces meet the country’s international human rights obligations. While the division of powers means that the federal government cannot enact abortion service laws specific to every province, it can provide general guidance, in accordance with sections 3, 4, and 22(1) of the Canada Health ActHealth Canada has recently exercised this power by announcing changes to how Mifegymiso is prescribed and dispensed nationwide.

In their advocacy for more accessible abortion services, many Canadian civil society organisations have called on the federal government to develop a national gender equality plan addressing all forms of discrimination against women and girls, including access to abortion services. The Native Women’s Association of Canada has documented some of the most serious challenges:

We are very concerned about access to abortion, including access to both medical and surgical abortions, particularly in rural and northern areas. Canada is one of the only countries with a public health care system that does not have a national pharmacare program. Because of the cost of some drug regimes, this has penalizing effects for certain groups of women, including pregnant women seeking medical abortions and women with HIV.

The provision of general minimal guidelines for provinces would help satisfy these concerns by improving Canada’s compliance with several UN recommendations on women’s human rights. Federal guidance could also help to address the issue of disparate services and protection across the country.

Whatever steps come next, it is clear that, despite the legal provision for abortion, its actual provision remains limited and inconsistent nationwide. As civil society and academia call for further access, Canada remains at serious risk of violating its international human rights obligations.

ID

[1] Martha Jackman, “The Future of Health Care Accountability: A Human Rights Approach” 47 Ottawa L. Rev. 437

By |January 10th, 2018|Blog|

Investor-State Dispute Settlement: Human Rights vs. Corporate Profits

CETA Protest in Brussels 2016

By Cassandra Knapman, J.D. candidate, University of Western Ontario

In late 2016, long-running negotiations on the EU-Canada Comprehensive Economic and Trade Agreement (CETA) came to a shuddering halt when a small French-speaking region inside Belgium refused to add its signature to the deal. Wallonia, which for complex political reasons needed to sign off on CETA in order for Belgium – the lone holdout – to join, had objected to the inclusion of an Investor-State Dispute Settlement (ISDS) mechanism. Such mechanisms permit companies to sue states for alleged discrimination against foreign investors, although in practice they have long been criticised for undermining domestic regulations.

Wallonia’s reluctance about the mechanism reflected, in part, the criticism that these mechanisms cause states to trade human rights protections for investor money, a concern that has been echoed by UN Special Rapporteurs and scholars.[2] After a flurry of negotiations, Wallonia extracted an agreement to exclude the relevant ISDS sections from the provisional application, pending an opinion from the European Court of Justice as to their compatibility with existing European treaties.[3]

According to proponents, ISDS is intended to protect investors from adverse state action and supplement domestic dispute resolution systems.[4] It permits corporations to sue the foreign nations in which they do business for discriminating against or expropriating their business ventures.[5] These claims are sent to arbitration before the applicable judicial body outlined in the relevant treaty, with arbitrators typically chosen by the parties involved.[6] Under CETA, the proposed judicial body is the Investment Court System.[7]

Arbitration is an expensive process and traditionally requires each party to pay its own fees, regardless of the outcome. Alongside the costs of the arbitration, successful arbitration for the investor typically results in a monetary penalty against the state.[8] A study of eighty-two ISDS cases found the average monetary award for investors to be 10.4 million USD.[9] While the majority of international treaties do not allow arbitration decisions to permanently annul or infringe on domestic laws, arbitrators often order certain actions by the state, such as preliminary injunctions.[10] Alongside the costs and potential payouts, states are concerned that successful arbitration by investors will discourage future investment.[11]

One of the main critiques of ISDS is that it causes states to avoid passing more stringent legislation on human rights, labour, or the environment for fear these could trigger investor claims.[12] Some states have rescinded or watered down legislation challenged by investors before their claims proceed to arbitration. An example is Germany’s relaxation of pollution controls in response to arbitration claims from Swedish nuclear company, Vattenfall.[13] Canada has also conceded human rights protections to avoid arbitration.[14] For instance, in 1998 Canada backed down from a proposed ban of a neurotoxic fuel additive, after an American company sued the government under NAFTA. As part of a negotiated settlement, Canada was forced to issue a statement declaring that the company Ethyl’s MMT additive was not dangerous to public health or the environment.[15] This statement directly contradicted many studies warning of the environmental and health risks of the additive.[16]

According to a report by several UN Special Rapporteurs, ISDS mechanisms have penalized states for enacting legislation on issues such as “food security, access to generic and essential medicines, and reduction of smoking … or raising the minimum wage” among other human rights concerns.[17] As the effects of ISDS ultimately affect the rights and protections of individuals, arbitrations have also been criticized for their lack of transparency and their failure to allow public participation.[18] These concerns have led to states either hesitating or refusing to enter into treaties with ISDS clauses, including CETA.[19]

In developing CETA’s ISDS, the parties, including Canada, attempted to address these criticisms. They clarified the meaning of “fair and equitable treatment” of investors, which is usually not defined and so its interpretation has been left to tribunals.[20] Since tribunals have no formal system of precedent and are often composed of different members for each hearing, the meaning of “fair and equitable treatment” has varied by dispute.[21] Without a consistent definition, it is difficult for states to ascertain whether they have provided investors with “fair and equitable treatment.” Building on interpretations commonly used by international tribunals, CETA defines “fair and equitable treatment” to refer to discrimination on protected grounds, loss of due process or access to legal proceedings, arbitrariness and abusive treatment.[22] This stricter definition appears to provide for greater predictability of arbitration outcomes, and may also decrease investor claims by limiting what is included as unfair and unequal treatment by the state.

In addition to clarifying the language of ISDS, CETA’s provisions aim to introduce greater objectivity, certainty, and transparency into the arbitration process. CETA incorporates the UN Convention on Transparency in Treaty-based Investor-State Arbitration to allow for greater transparency in the arbitration process.[23] Furthermore, the arbitration process is made more objective by the introduction of the Investment Court System (ICS).[24] The ICS will have a standing arbitration panel to hear all ISDS claims made under CETA.[25] The panel members are appointed for five to ten-years by the CETA Joint Committee. During an arbitration, arbitrators must demonstrate independence from those involved in the dispute.[26] The ICS also maintains an appellant body to review arbitration decisions and ideally create greater consistency in arbitration decisions.[27] Greater objectivity and consistency should allow states to better foresee the outcome of arbitration and thus decrease the number of states self-limiting human rights legislation to avoid unknown arbitration outcomes. Lastly, CETA alters the rewards available as a result of ISDS arbitration such that the unsuccessful party pays all costs of arbitration. Moreover, should the state lose the arbitration, only monetary awards can be assigned.[28] These changes in arbitration awards will hopefully limit the negative effects that ISDS can have on human rights.

Despite these apparent improvements, many remain critical of the CETA approach. Belgium – or to be more accurate, Wallonia – lists “arbitrator remuneration,” “ability to seek external employment,” and “selection and dismissal” amongst its concerns that the ICS will not function as an independent and objective judicial body. Critics are also concerned that despite CETA’s additional environmental, labour, and human rights protections, ISDS arbitration will continue to deter states from instituting further such legislation.[32]

While CETA has taken steps to address concerns related to ISDS, critics remain concerned about how the ICS will function in practice and whether the additional protections will actually limit negative arbitration effects on domestic human rights legislation. However, depending on the decision of the European Court of Justice, the current ISDS mechanism may never be put into practice.

Whatever form the dispute resolution system between investors and states under CETA ends up taking, it is clear that human rights must outweigh investor profits.

CK

[1] “CETA Belgian Request For An Opinion From The European Court Of Justice” (6 September 2017), Kingdom of Belgium, Foreign Affairs, Foreign Trade and Development Cooperation, online: <https://diplomatie.belgium.be/sites/default/files/downloads/ceta_summary.pdf>. [Belgium]

[2] “Investor state dispute settlement (ISDS): Background”, Business & Human Rights Resources Center, online: <https://business-humanrights.org/en/investor-state-dispute-settlement-isds/investor-state-dispute-settlement-isds-background> [Resource Center]

[3] Ibid.

[4] Ibid.

+ Organisation for Economic Co-operation and Development Investment Division, “Investor-State Dispute Settlement” (16 May 2012), Organisation for Economic Co-operation and Development, pg 13, online: < http://www.oecd.org/investment/internationalinvestmentagreements/50291642.pdf >.

[5] “The Arbitration Game”, The Economist, (11 October 2017), online:< https://www.economist.com/news/finance-and-economics/21623756-governments-are-souring-treaties-protect-foreign-investors-arbitration>. [Economist]

[6] “The Basics”, ISDS Platform, online: <http://isds.bilaterals.org/?-the-basics->.

[7] J. A. VanDuzer,” Investor-state Dispute Settlement in CETA: Is it the Gold Standard?” online: (2016), C.D. Howe Institute at pg 9 – 16 <https://www.cdhowe.org/sites/default/files/attachments/research_papers/mixed/Commentary%20459.pdf>. [CD Howe]

[8] Organisation for Economic Co-operation and Development Investment Division, “Investor-State Dispute Settlement” (16 May 2012), Organisation for Economic Co-operation and Development, pg 24-25, online: < http://www.oecd.org/investment/internationalinvestmentagreements/50291642.pdf >. [OECD]

[9] European Commission, “Investor-to-State Dispute Settlement (ISDS) Some facts and figures” (12 March 2015) European Commission, pg 8, online: < http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153046.pdf >.

[10] CD Howe, supra note 7.

OECD, supra note 8.

Resource Center, supra note 10.

[11]Resource Center, supra note 10.

[12] Ibid.

[13] Ibid.

[14] Ken Traynor, “How Canada Became a Shill for Ethyl Corp.” (July 1998), Canadian Environmental Law Association, online: <http://www.cela.ca/article/international-trade-agreements-commentary/how-canada-became-shill-ethyl-corp>.

[15] Ibid.

MMT is methylcyclopentadienyl manganese tricarbonyl and has been linked to heavy metal poisoning.

[16] Ibid.

[17] Alfred de Zayas, Catalina Devandas Aguilar et al, “UN experts voice concern over adverse impact of free trade and investment agreements on human rights” (2 June 2015), Office of the United Nations High Commissioner for Human Rights, online: <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16031>. [OHCHR]

[18] Resource Center, supra note 10.

[19] Economist, supra note 5.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] OHCHR, supra at note 12.

[24] CD Howe, supra at note 7.

[25] Ibid.

[26]Ibid.

[27] Ibid.

[28] Ibid.

[29] Belgium, supra at note 1.

[30] CD Howe, supra at note 7.

Scott Sinclair and Stuart Trew, “Why progressives oppose Canada-EU trade deal”, Toronto Star, (22 September 2016) online: <https://www.thestar.com/opinion/commentary/2016/09/22/why-progressives-oppose-canada-eu-trade-deal.html>. [Sinclair]

[31]Sinclair, supra at note 24.

[32]Ibid.

By |January 3rd, 2018|Blog|

The Omar Khadr Controversy:
Child Soldiers in Canadian and International Law

Omar Khadr being interrogated by CSIS 2

 

By Madeline Torrie, J.D. candidate, University of Toronto Faculty of Law

One of the biggest controversies of 2017 was the Trudeau government’s decision to pay $10.5 million in compensation to Omar Khadr, a Canadian citizen and former child-detainee at Guantanamo Bay. Khadr had sued the Canadian government for violation of his s.7 Charter rights while in U.S custody, where he had been interrogated by Canadian officials. Supporters of the payment highlighted Khadr’s age ­­­— he was 15 years old at the time of the alleged grenade attack which killed U.S. soldier Christopher Speer — and role as a child soldier. Opponents of the payout – including the vast majority of the Canadian public – argued that, at best, the government should have waited for the courts to decide on the lawsuit. According to Shelly Whitman of the Roméo Dallaire Child Soldiers Initiative, this may have related to the idea of Khadr as “child terrorist”: the public believes there is less responsibility owed to children who were “recruited for terrorism”, compared with those abducted as child soldiers.

In an official statement on Khadr, Senator Roméo Dallaire wrote “International law and norms, which Canada is signatory to, are put in place so as to protect those children who are unscrupulously used as weapons of war and to hold those who recruit and use them to account.” In an interview for Global News, War Child founder Dr. Samantha Nutt stressed the importance of rehabilitation and reintegration, even for child soldiers who have done worse than Khadr, who have “raped, killed dozens of people, who have slaughtered villages and wiped out entire communities.” A Globe and Mail editorial echoed these sentiments, pointing out that our justice system “gives special protection to children, because of the diminished moral and mental capacity of youth, rather than singling them out for special forms of mistreatment.”

On the other side of the debate, Jenni Byrne, a Conservative Party political advisor, drew a sharp distinction between the teenaged Khadr and, i.e., the seven-year-old children who were kidnapped and drugged during the Sierra Leone Civil War. For Byrne, Khadr was “no child soldier.” In a commentary for Global News, radio host Andrew Lawton cited Howard Anglin, a former policy advisor to Stephen Harper, to argue, “no international law or treaty prevents the prosecution of minors for war crimes.”

Child Soldiers in Canadian Law

In the 2010 decision Canada (Prime Minister) v. Khadr, the Supreme Court of Canada specifically noted Khadr’s status as a minor to highlight the severity of the breach to fundamental justice caused by Canada’s role in interrogating him while he was detained in Guantanamo: “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel […] offends the most basic Canadian standards about the treatment of detained youth suspects.”

Section 7 of the Canadian Charter of Rights and Freedoms clearly protects the right to “life, liberty and security of the person” except in “accordance with the principles of fundamental justice,” which the Supreme Court concluded were violated in the case of Omar Khadr. Furthermore, while the crime took place outside of Canada’s criminal law jurisdiction, the treatment of Omar Khadr in Guantanamo did not align with the values that Parliament outlined for young offenders in the Youth Criminal Justice Act. The Act requires that convicted and detained youth be separated from adults, and places a strong focus on rehabilitation rather than detention.

Canada’s military became the first in the world to adopt a doctrine issuing guidelines on how to address child soldiers in combat on March 2, 2017. The doctrine instructs that a detainee under the age of 18 must be “immediately removed from the adult population,” again emphasizing separation and rehabilitation. While the doctrine also acknowledges the right of soldiers to use force to protect themselves, even against child soldiers, it is a meaningful policy step towards addressing the reality of child soldiers in international conflict while also respecting their status as minors.

Child Soldiers in International Law

The treatment of Khadr contradicts Canada’s long history of supporting protections for child soldiers in international law and treaties. The 1977 Additional Protocols to the Geneva Convention prohibited the recruitment of children under the age of 15 in armed conflict and stipulated protection for child detainees which included separation from adults. This was followed by the 1989 Convention of the Rights of the Child which also included the 15-year-old age limit. This age limit of recruitment was raised to 18 in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which Canada helped create and ratified, and was adopted by the UN General Assembly in 2000. However, the recruitment of soldiers between the ages of 15-18 is still debated in some jurisdictions.

The Supreme Court wrote in Khadr (2010), that since Khadr was 16 at the time of his detention and he had no access to counsel, that “Canada’s Participation in the illegal process in place clearly violated Canada’s binding international law obligations.” Canada has chosen to recognize children recruited younger than 18 as child soldiers. As such, its participation in the interrogation of Khadr without proper counsel contradicts Canada’s commitments to international treaties protecting the rights of child soldiers.

That said, child soldiers are not immune from war crimes prosecution. Dominic Ongwen, who was abducted by the Lord’s Resistance Army in Uganda at age 10, is currently facing 70 counts of crimes against humanity and war crimes at the International Criminal Court, for crimes he is alleged to have committed as he rose through the LRA’s ranks. The Ongwen indictment raises difficult questions about whether to see child or youth soldiers as victims or perpetrators. Like Ongewen, Khadr was a victim of his circumstances, but who also allegedly committed a war crime.

In the end, the decision to settle, though politically unpopular, was informed by a combination of legal factors, including the Canadian Charter of Rights and Freedoms, the earlier Supreme Court decision, the Youth Criminal Justice Act, and decades of international law. These all point to the conclusion that Khadr was deserving of the rights and protections Canada affords to minors, and the reintegration and rehabilitation Canada has committed to provide to child soldiers.

What’s next for Khadr?

Khadr’s legal troubles are not over, however. Although out of prison, he was only released on bail from his eight-year prison sentence, under conditions which have affected, for example, access to his controversial family. In 2015, a Utah court ordered Khadr to pay out US$134.2-million in a wrongful death lawsuit filed by the widow of Christopher Speer. Khadr has so far refused to pay, and analysts are skeptical that it will ever be enforced in a Canadian court.

MT

By |December 15th, 2017|Blog|

Genetic Non-Discrimination:
Civil Rights in the 21st Century

Cadena de ADN

By Gregory Ringkamp, J.D. candidate, University of Toronto Faculty of Law

As genetic information becomes increasingly easy to access, new questions have arisen as to how society should permit the information to be used. When the United States adopted the Genetic Information Nondiscrimination Act in 2008, Senator Ted Kennedy couched it in terms of human rights, referring to it as the “the first civil rights bill of the new century of life sciences.”[1] The Genetic Non-Discrimination Act, which became law in May 2017, is set to bring similar protections against genetic discrimination to Canada.

Genetic testing is a powerful predictive tool, and rapid advances in medical technology have made it more available to the public than ever before. 23andMe, a private genetic testing company, allows users to learn about their susceptibility to certain diseases, and about their likelihood of passing them on to their children, for the cost of just $249. The medical community is moving toward a better understanding of how a person’s unique genetic characteristics influence their response to treatment, opening the door to a future of better-tailored drugs.

But the increasing prominence of genetic information has also brought new concerns about how such powerful predictive information ought to be used. An accurate prediction about someone’s future wellness may be of particular interest to employers and insurers, who could plausibly use the information to make hiring or coverage decisions. Because one’s genes cannot be changed, such a possibility raises issues of fairness. Individuals cannot choose their genes any more than they can choose their race, sex, or national origin; it would seem to offend basic notions of fairness to allow someone to be treated differently on this new basis. Additionally, fears of genetic discrimination (even if unrealized) may make it harder for researchers to advance the field of genetics. Fear of genetic discrimination has been found to be a significant reason why patients choose not to participate in genetic studies.[2]

The Genetic Non-Discrimination Act, like similar acts in the United States and Europe, addresses these concerns. By assuring Canadians that the genetic tests they undergo will not be used against them by insurers, employers, and others, the Act theoretically makes the tests more attractive, while also preventing unfair discrimination on the basis of genetic information.

In addition to amending the Canadian Human Rights Act to add “genetic characteristics” as a prohibited ground of discrimination, the Act amends the Canada Labour Code to prevent employers from requiring their employees to undergo genetic testing. The Act also prohibits anyone from requiring genetic testing, or the disclosure of genetic results, as a precondition for providing goods or services. In its most obvious application, these provisions of the Act would prohibit insurers from requiring genetic information when deciding whether or not to cover someone.

However, the Act faces a number of challenges – first, on its fundamental usefulness. Although it might seem logical that a genetic non-discrimination act would make genetic tests more attractive by easing fears of discrimination, at least one study has found this not to be the case.[3]

Furthermore, although the Act would prohibit discrimination on the basis of genetic characteristics, it would create a new inequity – patients with genetic conditions would gain the unique ability not to disclose a preexisting condition to their insurer. It would be fraud for any other patient to do the same, even if their condition was similarly unavoidable.[4]

Additionally, individuals whose genetic tests show that they are at risk for developing a condition tend, naturally, to seek more insurance coverage to offset the risk.[5]. Because of this, the Act may result in increased rates for policy-holders, as insurers increase premiums to account for the greater number of high-risk individuals receiving coverage. Indeed, the Canadian Institute of Actuaries has suggested the Act may cause term life insurance premiums to rise by up to 30 per cent for men and 50 per cent for women.[6] The people least able to afford insurance will be hardest-hit by any such increase in rates.

The Act’s constitutionality is also in question. In July 2017, the Quebec government referred the constitutionality of the act to the Quebec Court of Appeal, asking whether the Act is ultra vires Parliament’s power over criminal law. At the time of writing, the question has not been decided.

GR

 

References

[1] David H. Kaye, “Gina’s Genotypes” (2010) 108 Mich. L. Rev. First Impressions 51. Available at: http://repository.law.umich.edu/mlr_fi/vol108/iss1/5

[2] AA Lemke, “Public and Biobank Participant Attitudes Toward Genetic Research Participation and Data Sharing” (2010) 13:6 Public Health Genomics 368-377

[3] Amalia Miller & Catherine Tucker, “Privacy Protection, Personalized Medicine, and Genetic Testing” (2017) Articles in Advance, Management Science 1-21

[4] Canadian Institute of Actuaries, “Proposed Amendment to Bill S-201, An Act to prohibit and prevent genetic discrimination” (November 2016), Available at: http://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=9194069#DT20161201JUSTMEE38ID9194069

[5] In the REVEAL Study, Harvard researchers found that individuals positive for a certain version of the APOE gene, which is associated with a greater risk of developing Alzheimer’s disease, were five times more likely to purchase long-term insurance. (https://mobile.nytimes.com/2014/04/08/science/fearing-punishment-for-bad-genes.html).

[6] “Proposed Amendment”, supra at p 2

 

By |November 22nd, 2017|Blog|