The following is an excerpt of the article published on July 31, 2017 in the PKI Global Justice Journal
Nevsun Resources Ltd.
In October 2016, the Supreme Court of British Columbia decided to exercise its jurisdiction to hear claims resulting from alleged human rights violations and civil torts in the case of Araya v. Nevsun Resources Ltd.1 The Nevsun proceeding had commenced in 2014 on the issue of whether foreign plaintiffs can sue in a Canadian court for violations they allegedly suffered in Eritrea. The case is significant in part because the civil lawsuit is among the first human rights cases in Canada to assert claims based directly on international law prohibitions against forced labour, slavery, torture and crimes against humanity and because of the implications for Canadian companies doing business in developing countries where the rule of law is fragile or nonexistent.
The Nevsun case raises several issues of transnational law (a term that reflects the convergence of customary international law and private claims regarding human rights violations).
This article focuses on the propriety of Canadian jurisdiction in response to a forum non conveniens application, an area of law that has been the target of considerable judicial interpretation pursuant to s.11 of the Court Jurisdiction and Proceedings Transfer Act.4 The case also examines whether damages claims for peremptory norms of customary international law such as forced labour and torture can form the basis of Canadian domestic civil proceedings. This second aspect raises novel issues of law, including whether such claims are justiciable before Canadian courts, along with the issue of the act of state doctrine, and will be dealt with in a subsequent article.
For the complete, original article, click here