With Great Advantage Should Come Responsibility: How the Territorialist Approach in Private International Law Maybe Overcome to Ensure Justice is Done for those Left in the Wake of Canadian Business Abroad
Charles, Michele Dominique Lemieux
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Conflict of laws rules in Canada bias toward taking jurisdiction over matters involving human rights or environmental abuse inflicted abroad, particularly when inflicted by Canadian corporations. Contrary to enumerated tests for jurisdiction, many Canadian courts have instead preferred a regressive state-centric/hyper-comity anchor in applying such tests to putative foreign plaintiffs. This Thesis argues this preference can be effectively understood using the lens and language of Pierre Bourdieus field theory as representing a habitus of the Canadian judiciary. In light of the habitus of the Canadian judicial field, and in order to encourage an interpretation of conflict of laws rules in Canada that prefers an uptake of such claims, practitioners ought to introduce issues of jurisdiction to Canadian courts framed with respect to fairness, notably whether it is fair to provide Canadian corporations significant benefit when operating abroad and, through failure to take jurisdiction, allow such corporations to avoid civil prosecution.