Transnational Access to Justice in Araya v Nevsun: Overcoming Procedural Barriers to Remedy in Business and Human Rights Cases - By Alexandru Rares Tofan

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.


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 lawA 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]


Forum Non Conveniens

The first objection to the jurisdiction of the Canadian courts raised by Nevsun is forum non conveniens.[2] This common law doctrine enables a court that has jurisdiction over a case to dismiss or stay the proceeding if a more appropriate forum is available. The onus generally falls on the defendant who has to prove that the alternate forum is comparatively more appropriate and therefore preferable. Nevsun applied for a stay of proceedings pursuant to Rule 21-8 (2) and S. 11 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA), alleging that the Eritrean courts are a more appropriate forum for this action.[3] It argued that Eritrea is the jurisdiction that has the closest connection with the action, and that the comparative convenience and expense for the parties and their witnesses overwhelmingly favours proceeding in Eritrea. Contrarily, the plaintiffs argued that the case should proceed in British Columbia because there is a real risk that justice will not be delivered in Eritrea.[4] They claimed that the plaintiffs would face severe barriers to justice there given their status as deserters, the lack of an independent judiciary and the absence of an implemented constitution inter alia.  They further pointed out that Eritrea is a dictatorial, one-party state where the rule of law is not in force. The plaintiffs ultimately alleged that Nevsun is attempting to avoid all judicial scrutiny by having the case tried in the very country that purportedly violated their human rights.

The courts agreed with the plaintiffs.[5] The BCSC found that although the practical and logistical difficulties of hearing the claims in Canada were considerable, there was a real risk that the plaintiffs would not get a fair trial in Eritrea. The court’s ratio decidendi was thus based on a balancing of the various criteria contained in the CJPTA. It weighed the expense, inconvenience and other difficulties of proceeding in Canada against the chance that the plaintiffs may not get a trial at all. The court here relied on various expert witnesses and secondary reports,[6] which corroborated the plaintiffs’ fears that they cannot return to Eritrea and obtain a fair trial against Nevsun in that forum. The expert testimony of Mr Ghebremichael who formerly served as a judge in Eritrea stands out here. He asserted that any judge hearing this case and ruling in favour of the plaintiffs would be placing her career and personal safety in jeopardy. The secondary reports from various NGOs and the US Department of State were also unanimous in concluding that the plaintiffs would face real consequences if they attempted to return to Eritrea. The BCSC thus concluded that there are serious allegations made as to the integrity of the Eritrean judicial system and that ‘it would defy common sense’ not to find that there is a real risk of an unfair trial.[7]

The Court of Appeals of British Columbia did not find fault with the BCSC’s rationale.[8] It nevertheless highlighted the fact that it all boiled down to the onus.[9] The court held that it was Nevsun’s task to prove that it would be fairer and more efficient to depart from the normal state of affairs where jurisdiction is exercised by the courts having territorial competence and where the plaintiffs are entitled to select a forum. The BCCA concluded that ‘[...] the chambers judge did not err in principle, misapprehend or fail to take into account material evidence or reach an unreasonable decision in concluding that Nevsun had not met this onus, nor in concluding that a ‘real risk’ of an unfair trial, should it occur in Eritrea, had been shown.’[10] In upholding the BCSC’s dismissal of the forum application, the Court of Appeals agreed that the difficulties of mounting a trial in British Columbia are substantial. It nonetheless stressed that these difficulties are unrelated to the fairness of the trial or the independence of the courts. This, paired with the grave nature of the allegations, lessened the bearing of the comparative inconvenience and expense. As Lord Bingham stated in Connelly (A.P) v RTZ Corp. Plc (No. 2), the interests of justice tend to weigh in favour of the less appropriate but fair and impartial forum rather than the one where justice seems unlikely to be done.[11] The forum application was therefore dismissed and the case was allowed to proceed in British Columbia.


Act of State Doctrine

In the second interlocutory application, Nevsun motioned that the plaintiffs’ claim should be dismissed because it depended on the Canadian courts inquiring into the legality of the conduct of a foreign sovereign state.[12] Nevsun pleaded the act of state doctrine (AOS), which is a judicial rule barring the courts of one country from sitting in judgment of the acts of the government of another when these acts are done within its own territory.[13] On this basis, Nevsun argued that the court lacked subject matter jurisdiction pursuant to Rule 21-8(1)(a) and (b) or, alternatively, that the claim disclosed no reasonable cause of action pursuant to Rule 9-5 of the Supreme Court Civil Rules (SCCR).  Nevsun further argued that this doctrine applies despite the action not imputing blame directly on Eritrea. It claimed that the case rests on the courts finding that the actions of the Eritrean state amount to crimes against humanity and are contrary to international law. On the other hand, the plaintiffs argued that it is uncertain whether this doctrine forms part of the common law of Canada.[14] They pointed out in this regard that the act of state doctrine has never been applied by a Canadian court. In the alternative, the plaintiffs held that several limitations apply including the public policy, Kirkpatrick and the commercial activity limitations. They lastly emphasised the non-engagement of this doctrine in cases involving allegations of serious human rights violations.

The British Columbia courts dismissed Nevsun’s application.[15] They held that the act of state doctrine is not engaged in the case at hand and that, even if it were, the public policy and Kirkpatrick limitations would apply. The BCSC began its reasoning by acknowledging that this doctrine does form part of the common law of the country despite its lack of usage and clarity. In stating this, the BCSC relied on the 2015 case of United Mexican States v British Columbia (Labour Relations Board) where Justice Harris specifically referred to the doctrine. The court further reasoned that the well-established existence of this doctrine in jurisdictions such as England and Australia exerts a pull towards its recognition in Canada as well. The real weight of the court’s analysis nevertheless fell on considering whether the doctrine was engaged, whether its limitations apply and on the propriety of dismissing an action without providing the plaintiffs the opportunity to prove their case.

Both the BCSC and the BCCA denied the applicability of the act of state doctrine.[16] They reasoned that the plaintiffs’ claims do not purport to challenge the legality or validity of a foreign states’ laws. Rather, the courts reckoned that the plaintiffs are only seeking redress for acts of Nevsun that do not form part of Eritrean legislation or official policy. In other words, these acts are indeed linked to wrongs alleged to have occurred in Eritrea but the lawfulness, validity, effect of, or motives underlying, sovereign acts of Eritrea need not be analysed.[17] The courts emphasised that if the occurrence of these acts was proven as a matter of fact, the only other step in the court’s analysis would be ascertaining Nevsun’s complicity. The court therefore concluded that the AOS doctrine is not engaged and, even if it is, its limitations would apply to the same effect. The court here refers specifically to the public policy, Kirkpatrick and the commercial activity limitations.

Firstly, the public policy limitation refers to the grave nature of the wrongs, which would be unjustifiable regardless of their inclusion in any legislation or official policy. The acts alleged here are contrary to both jus cogens norms and fundamental values of Canadian law. The gravity of the acts thus limits the prohibition on adjudication stemming from the AOS doctrine. Secondly, the Kirkpatrick limitation refers to the distinction between mentioning acts of state as an existential matter and, on the other hand, inquiring into them for the purposes of adjudicating upon their legal effectiveness. The courts emphasised that the plaintiffs’ claim merely requires the alleged conduct to be proven as an existential matter. The only remaining step after that would be ascertaining the complicity of Nevsun. The Kirkpatrick limitation would thus also limit the application of the AOS doctrine. Thirdly, the commercial nature of the activity could act as a constraint on the prohibition on adjudication. Nevertheless, the BCSC stated that the pleadings and evidentiary record are insufficient to determine the applicability of this limitation. The BCCA concurred and added that the applicability of the two other limitations makes this inquiry unnecessary.

The act of state objection was therefore dismissed and the action was allowed to proceed.


Customary International Law and Corporate Liability

In the third interlocutory application, Nevsun claimed that the prohibitions recognised under customary international law do not give rise to a private law cause of action for damages.[18] It argued that these portions of the plaintiffs’ Notice of Civil Claim should be struck out pursuant to Rule 9-5 SCCR as they disclose no reasonable claim, or are unnecessary. It further argued that the CIL prohibitions do not impose obligations on corporations and that holding otherwise would be contrary to fundamental principles of international law as well as settled Canadian criminal and tort law. Nevsun pointed out that these claims are plainly bad in law and that there is no reasonable prospect they could succeed at trial. For these reasons, they asserted that these allegations should be struck out in the interests of judicial efficiency and fairness. Contrarily, the plaintiffs argued that prohibitive rules of customary international law are to be incorporated into Canadian law in the absence of conflicting legislation as per the doctrine of adoption.[19] They further alleged that corporations do not enjoy blanket immunity from CIL but rather that there has been judicial recognition that corporations may be subject to rights and obligations under international law. Additionally, the plaintiffs argued that the conditions for recognising new international torts are met. They lastly asserted that these claims do have a reasonable chance of success and that they should therefore not be dismissed at this stage of the proceeding. The BCSC concluded that the CIL claims are arguable and that Nevsun has failed to establish that they have no reasonable likelihood of success.[20] It therefore dismissed Nevsun’s interlocutory application and allowed the claim to proceed to trial.

Several important considerations drove the courts’ reasoning. From the outset, the BCSC stated that settled case law demands an approach that is generous and that errs on the side of permitting novel but arguable claims. The crux of the matter nevertheless fell on whether the claims have a reasonable chance of success such that the plaintiffs should not be driven from the judgment seat on a preliminary application. Importantly, the court here did not need to decide whether these new torts should be recognised. At this stage of the proceeding, it merely had to establish that they were not bound to fail. Firstly, the court looked at the history of corporate liability under international law and accepted the plaintiffs’ submission that it is a complex and layered narrative as opposed to a clear-cut issue.[21] It also entertained Nevsun’s submissions as to the lack of international recognition of corporate liability and the alleged absence of a uniform state practice and opinio juris. Secondly, the BCSC considered the limited competence of the judiciary in law-making, which rather falls within the ambit of the legislature. In this sense, the court was mindful that its role is to only incrementally advance the law so as to keep it in step with evolving societal needs. Radical changes to the law, however desirable, must be left to the parliament. Yet the BCSC reasoned that the CIL application did not require it to decide on any of the substantive issues raised by the parties; it solely needed to decide whether the claims are arguable such that they have a reasonable chance of success at trial. Further, the BCSC held that the uncertainty of the law on this point makes it that much more important that these claims go to trial. The court here cited Justice Wilson in the Hunt v Carey Canada, Inc. case, which asserted that it is much more critical that an action be allowed to proceed when it reveals arguable, difficult or important points of law.

On appeal, the BCCA agreed that there are significant legal obstacles to these claims.[22] The court here particularly referred to legitimate concerns about comity and sovereign equality, and the role of the judiciary as opposed to the legislature. It nevertheless also stated that the recognition of a CIL norm against torture as the basis for a private law claim ‘[...] would [not] bring the entire system of international law crashing down [...]’.[23] In reaching this conclusion, the BCCA relied on the fact that no state is a party to this proceeding, that Eritrea is fully protected by state immunity and that these CIL norms at issue here are universally accepted. The court further emphasised that international law is in flux and that transnational law is developing especially in connection to human rights violations that escape current international mechanisms. It also observed here that other jurisdictions have been willing to hold corporate actors accountable for violations of jus cogens norms. [24]

On these considerations, the BCCA concluded that the BCSC had not erred in dismissing Nevsun’s CIL application.[25] The court therefore held that the claims should proceed in British Columbia as pleaded.



The Araya v Nevsun case plays into a discussion that goes to the very nature of transnational and international law, and their place in national courts. As Lord Lloyd Jones aptly observes in the UK case of Belhaj v Straw,[26] the evolution of public international law beyond a mere inter-state system of law has brought with it a corresponding shift in international public policy. This is reflected in the growing willingness on the part of national courts to address and investigate the conduct of foreign states and issues of public international law.[27] Mindful of this wider context, the Court of Appeals of British Columbia began its judgment in the Araya case by asking one overarching question - should the Canadian courts participate in the incremental development of transnational law or should they remain on the traditional path of judicial abstention from adjudication of matters touching on the conduct of foreign states?[28] This question is now before the Supreme Court of Canada, which is presented with an important chance to offer guidance on the role of national courts in this regard.[29]

On the other hand, one should be mindful of what this case means in terms of access to justice in business and human rights disputes. The plaintiffs filed the initial notice of civil claim in 2014 and four years later they have only incrementally approached redress. The Canadian Supreme Court’s judgment will not come before the second half of 2019 at which point, if successful, the plaintiffs are facing several more years litigating the merits of the case.  The elusive nature of accountability and remedy in this type of cases is nevertheless not a novelty.[30] As the UN High Commissioner for Human Rights affirmed in a 2016 report, those seeking to use judicial mechanisms to obtain a remedy for corporate human rights abuses face numerous challenges. These claims often fail to proceed to judgment and, when they do, they encounter a system of domestic law that is patchy, unpredictable, often ineffective and fragile.[31] The Canadian courts’ approach in this case is relatively amicable to the claimants and opens the door for a stricter interpretation of the traditional hurdles to jurisdiction in business and human rights cases. Nonetheless, the Araya v Nevsun case illustrates the fact that victims seeking redress for corporate human rights abuses face an uphill battle.

[1]           Araya v Nevsun Resources Ltd., 2017 BCCA 401 [hereinafter ‘BCCA Judgment’] [17].

[2]           Araya v Nevsun Resources Ltd., 2016 BCSC 1856 [hereinafter ‘BCSC Judgment’] [6].

[3]           Ibid [227].

[4]           Ibid [236].

[5]           Ibid [337]-[339].

[6]           These secondary reports were issued by various governmental and non-governmental organisations such as the United Nations Commissions of Inquiry, the United States Department of State, the European Asylum Support Office, Human Rights Watch, Amnesty International and the Danish Immigration Service. See BCSC Judgment (n 2) [8].

[7]           BCSC Judgment (n 2) [286].

[8]           BCCA Judgment (n 1) [120], [122].

[9]           Ibid [119].

[10]          Ibid.

[11]          Ibid [120].

[12]          BCSC Judgment (n 2) [360]-[362].

[13]          Ibid [349]; see also Underhill v. Hernandez, 168 U.S. 250 (1897) at 252.

[14]          BCSC Judgment (n 2) [363]-[364].

[15]          Ibid [419]-[422].

[16]          Ibid [360]-[362]; BCCA Judgment (n 1) [165] ff.

[17]          BCCA Judgment (n 1) [167].

[18]          BCSC Judgment (n 2) [424].

[19]          Ibid [444], [449]; see also R. v Hape, 2007 SCC 31125 [36].

[20]          BCSC Judgment (n 2) [483]-[485].

[21]          Ibid [468] ff.

[22]          BCCA Judgment (n 1) [196].

[23]          Ibid.

[24]          Ibid [189]-[197].

[25]          Ibid.

[26]          Belhaj v. Straw [2014] EWCA Civ 1394, aff’d [2017] UKSC 3 [115]; see also BCCA Judgment (n 1) [1].

[27]          Belhaj v. Straw (n 26) [115].

[28]          BCCA Judgment (n 1) [1]-[2].

[29]          Ibid [177].

[30]          UN General Assembly, ‘Improving Accountability and Access to Remedy for Victims of Business-Related Human Rights Abuse - Report of the United Nations High Commissioner for Human Rights’ (2016) A/HRC/32/19, para. 2.

[31]          Ibid para. 4.

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