"Litigation or Arbitration? The Prospects for Adjudicating International Human Rights Claims in Canada"

An updated version of my article “Litigation or Arbitration?: The Prospects for Adjudicating International Human Rights Claims In Canada” (presented at the WIRP Law Conference earlier this year) is available in pdf here.  Here is the abstract:

This paper will briefly explore the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada from the perspective of the differing judicial approaches to the enforceability of forum selection and arbitration clauses,on the one hand, and divergent jurisprudential views on assuming or declining jurisdiction, on the other.  
Recent Supreme Court of Canada pronouncements reflect a Rawlsian view of contractualism: that morality (and, therefore, public policy) is based on social contract or agreement. Each statement identifies the continuing jurisprudential debate over the nature and scope of a court’s jurisdiction ratione materiae and the judicial role in reviewing private contractual disputes submitted to consensual arbitration. It also highlights the tension between promoting the primacy of party autonomy and contractual freedom, on the one hand, and defining the limits to judicial intervention of matters involving the “public order” or public interest, on the other. Essentially, it addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest. 
Unless the Canadian federal State Immunity Act is amended to create a general “torture” or “human rights abuse” exception, or Canadian federal legislation akin to the U.S. Alien Tort Statute, is enacted, the only viable procedural route is to attempt to enforce a foreign arbitral award obtained against a state based upon commercial activity and rely upon the “forum of necessity” exception to the reformulated “real and substantial connection” test in Van Breda. This will, of necessity, include concurrent claims framed in contract and tort, as well as claims imposing liability against Canadian corporations “aiding and abetting” the alleged torture or human rights violations committed in the host state’s territory and falling within the ambit of acts committed by individuals acting in an official capacity.Only time will tell whether the winds of political change or judicial activism will finally hold sway and allow victims of human rights abuses and torture equal access to Canadian justice.

 Comments and critiques are welcome.

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