Professional responsibility and the defence of extractive corporations in transnational human rights and environmental litigation in Canadian courts

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Abstract

Lawyers defending extractive corporations in transnational human rights and environmental cases tend to reflect the dominant ‘resolute advocacy’ model of litigation, which directs lawyers to aggressively pursue clients’ interests though all available means. Given the inequality of arms between plaintiffs and defendant corporations, and the changing normative context generated by the United Nations Guiding Principles on Business and Human Rights and the Sustainable Development Goals, we ask whether a different vision of advocacy more appropriate in this type of litigation.  We put forward a model of ‘moderated resolute advocacy’ and propose some normative and legislative reforms. 

Bio

Amy Salyzyn is an Associate Professor in the Faculty of Law, Common Law Section at the University of Ottawa and a Faculty member of the Centre for Law, Technology and Society. She received her J.S.D from Yale Law School for her dissertation exploring the judicial regulation of lawyers in common law jurisdictions. She also received her LL.M. from Yale Law School and her J.D. from the University of Toronto. She has written extensively in the area of legal ethics, lawyer regulation, the use of technology in the delivery of legal services and access to justice.  

Penelope Simons is a Full Professor and the Gordon F. Henderson Chair in Human Rights at the Faculty of Law (Common Law Section), University of Ottawa. A global leader in business and human rights, her research focuses on the human rights implications of domestic and transnational extractive sector activity, state responsibility for corporate complicity in human rights violations, the regulation of transnational corporations, gender and resource extraction, as well as the intersections between transnational corporate activity, human rights and international economic law. She is the co-author with Audrey Macklin of The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (Routledge 2014 ). She also co-author with Tony VanDuzer and Graham Mayeda of Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Countries (Commonwealth Secretariat, 2013). Penelope is a member of the Human Rights Research and Education Centre, the Interdisciplinary Research Group on the Territories of Extractivism (GRITE) and the Center for Environmental Law and Global Sustainability, at the University of Ottawa, as well as the SSHRC-funded Canadian Partnership on Strengthening Justice for International Crimes. In 2018, Penelope was awarded the Walter S. Tarnoplosky Award, recognizing her as “an individual who has made a significant contribution to human rights. 

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