Editor's note: Alexandru Rares Tofan recently graduated with an LLM in
Transnational Law from King’s College London where he focused on international
human rights law, transnational litigation and international law. He is
currently an intern with the Doing Business Right
project at the Asser Institute in The Hague. He previously worked as a research
assistant at the Transnational Law Institute in London on several projects
pertaining to human rights, labour law and transnational corporate conduct.
Introduction
In 2014, three Eritrean refugees commenced
a representative action in British Columbia against the transnational
mining company ‘Nevsun Resources’, pleading both private law torts and
violations of customary international law. They alleged that they were subjected
to forced labour, slavery, torture, and crimes against humanity while working
at an Eritrean gold mine jointly owned by Nevsun (60%) and by the Eritrean
State (40%). The representative action was brought on behalf of over a thousand
people who had been drafted into the Eritrean National Service Programme (NSP) and
subsequently forced to work at the Bisha Mine. The NSP
is a governmental apparatus of indefinite and mandatory conscription that is fraught
with allegations
of forced labour and other human rights abuses.
It was established under the authoritarian
regime of President Isaias Afwerki who has been ruling Eritrea ever since
the country gained independence from Ethiopia in 1993. As Nevsun is incorporated
under the laws of British Columbia, the plaintiffs sought relief in the courts
of the Canadian province. Notwithstanding the defendant’s attempts to have the
proceeding stayed or dismissed, the action was allowed to go through both by
the Supreme
Court of British Columbia (BCSC) and the Court of
Appeals (BCCA). On 14 June 2018, the Supreme Court of Canada granted
Nevsun leave to appeal with a tentative hearing date set on 23 January
2019.
This proceeding raises complex issues of transnational law. The
plaintiffs are seeking redress in a jurisdiction that is neither the locus delicti nor their country of
nationality. Rather, the claimants argue that peremptory norms of customary
international law create a private law cause of action and a right to recover
damages under Canadian law. In point of fact, the plaintiffs have called
attention to several delicate questions. Firstly, can claims of damages arising
out of the alleged breach of jus cogens
norms form the basis of a civil proceeding? And are corporations bound by these
international law norms for that matter? The case is further layered by the involvement
of the State of Eritrea. Since Nevsun is argued to be derivatively liable, a
finding of guilt on its part would mean that the Canadian courts would be judging
the acts of another state. This engages the act of state doctrine, which
demands judicial abstention from adjudication of matters touching upon the
conduct of foreign states.
Nevsun filed four interlocutory applications seeking to have the
claim stayed, dismissed or struck out. This article traces the development of
this case through the first three objections to jurisdiction raised by Nevsun
and dismissed by the provincial courts: forum non conveniens, the act
of state doctrine and the lack
of corporate liability under customary international law. A
fourth application argued that the plaintiffs’ claims are not appropriately
brought as a representative action (i.e. class action). This application was
granted by the Supreme Court of British Columbia and was not appealed by the
plaintiffs.[1]
More...