During the plenary session on climate change at the Canadian Council on International Law’s 2015 Annual Conference, panel speakers voiced observations about the potential increase in the prevalence of climate change litigation. In September, CIGI hosted a workshop on the possibility of climate change litigation in Canada following the public lecture by Roger Cox on the Urgenda decision.
While that workshop was particularly focused on litigation in the context of enforcing international commitments made by governments, there may be a possible backdoor that opens up to an alternative route of promoting the climate agenda. This backdoor is private international law. This assessment stems from the recent Supreme Court of Canada’s (SCC) decision in Yaiguaje v Chevron, discussed during the session on Highlights of 2015 from the Canadian Yearbook of International Law.
To briefly summarize the issues in that case:
A group of Ecuadorian villagers obtained a judgment for $9.5 billion from the Ecuadorian court for pollution damage caused by Texaco (which then merged with Chevron later on). The Ecuadorians sought to enforce the judgment in Ontario. It is to be noted that judgment was entered against Chevron US and as such the case had no links to Canada apart from the fact that Chevron had a subsidiary company in Canada i.e. Chevron Canada.
It is well-settled law in Canada that jurisdiction is established on the basis of a ‘real and substantial’ connection. Nevertheless, the SCC took an interesting approach by distinguishing the nature of the proceeding, stating that enforcement proceedings are different from an action at first instance. As such, the SCC held that a ‘real and substantial connection’ between the Canadian court and the action or parties is not necessary where proceedings concern the recognition and enforcement of foreign judgments. A Canadian court can assume jurisdiction to recognize and enforce a foreign judgment as long as it is satisfied that the foreign court validly assumed jurisdiction and had a real and substantial connection with the action or the parties to the action. Noting the rapidity of electronic banking and the objectives of not depriving judgment creditors of access to funds that might eventually enter the jurisdiction and not advantaging judgment debtors who seek to evade enforcement, the Court further ruled that recognition and enforcement proceedings were not dependent upon the presence of assets in the jurisdiction at the time of the proceedings.
This decision is relevant to the climate change litigation agenda simply because it offers an avenue to enforce judgments, which includes climate change-related judgments. If there is indeed a growing trend of climate change litigation in other countries, this provides an alternative means of holding transnational corporations accountable. Climate change is a global phenomenon and courts around the world are becoming increasingly aware of it. This decision has significant implications for the implementation of the polluter-pays principle: when a foreign court does make a finding of liability for pollution or contribution of greenhouse gas emissions, this decision enables the Canadian courts to enforce the judgment of the foreign court. Under such circumstances, transnational corporations would no longer be able to hide behind the shield of private international law.
To conclude, if the world is moving towards a trend of domestic enforcement of international standards, private international law may have something to offer. Furthermore, the idea that we are living in a ‘bottom-up’ world and moving away from the ‘state-centric’ paradigm of international law lends even more support for further consideration of what private international law can do.
