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LEXPERT RANKED LAWYERS In refusing to dismiss the case, the Ontario court held that the parent company's direct involvement in security arrangements at the Guatemalan mine left it open to being sued at home. That raises the question of whether companies that take a hands-on role in their environmental assessment and compliance programs of foreign subsidiaries could potentially be exposing themselves to a new area of liability, Mitchell says. "It is a bit troubling. What we've now got is this blurry concept that governance, controlling operations of subsidiaries, might be used as a way to target parent companies for things that happen halfway around the world. People who work in this area should be tracking this case for sure." The increasing frequency of litigation, combined with the success of social media in shining a light on a corporation's actions anywhere in the world, are combining to raise the stakes for mining companies that fail to remain on top of fast-changing environmental rules and norms. "We are seeing environmental standards become more consistent around the world; there is a clear trend towards globalization," says Richard Neufeld, an environmental lawyer at Dentons Canada LLP in Calgary. "So the standards you might have expected to meet in some of these jurisdictions in years gone by, in third world countries in particular, are in many respects being replaced by best-practices of the more developed areas of the world. "Some companies operating in those jurisdictions may still not be paying as close attention to environmental performance in third-world countries as they would in more developed areas and as a result, they're finding themselves exposed to potential enforcement actions or litigation." Neufeld, who advises mining companies, says he would counsel corporations with operations that straddle multiple jurisdictions in developing countries to adopt a "first principles" to how they approach environmental compliance. "I would advise them to take the approach that their operations will comply with their own set of standards and policies and practices, no matter where they are. That is what I would recommend." To do that, he says, companies need to have someone on the ground knowledgeable about the domestic regime to identify where there are differences or gaps and, where there are, make certain the company adheres to the highest level. "Where we have seen some of the more high-profile problems in the mining business is where, according to media reports, it appears a company may have been adopting procedures in other countries that they would never adopt in Canada or the United States." Scarlett, James D. Torys LLP (416) 865-8199 jscarlett@torys.com > Mr. Scarlett, a member of the firm's Executive Committee, provides senior-level advice to mining companies, investors and investment banks on M&A, corporate finance and governance matters. Seviour, Colm St. Roch Stewart McKelvey (709) 570-8847 cseviour@stewartmckelvey.com > Mr. Seviour's practice extends to mining, energy, environmental, Aboriginal and construction law. His experience includes mining (including royalty) litigation and transactional matters, Aboriginal litigation and defence of environmental charges. Sheridan, William J.V. McMillan LLP (416) 307-4060 william.sheridan@mcmillan.ca > Mr. Sheridan's practice includes general corporate and commercial matters and securities with an emphasis on M&As, mining and international joint ventures. Shishler, Melanie A. Davies Ward Phillips & Vineberg LLP (416) 863-5510 mshishler@dwpv.com > Ms. Shishler has extensive experience in the mining sector, focusing on public and private M&A, both negotiated and unsolicited, joint ventures, private equity investment transactions, proxy contests, royalty transactions and corporate finance. Siltala, Michael J. Torys LLP (416) 865-8116 msiltala@torys.com > Mr. Siltala, the coordinator of the firm's Corporate Group, specializes in M&A and corporate finance for both issuers and underwriters, including the mining sector. He has acted on many of the largest M&A and public finance deals in Canada since 2000. Skelly, William E.J. Heenan Blaikie LLP (604) 891-1177 wskelly@heenan.ca > Mr. Skelly's practice focuses on national and international financings and restructurings. He acts for lenders providing financing to mining companies and for lenders and debtor mining companies in need of strategic advice in troubled times. | WWW.LEXPERT.CA 2013/14 | LEXPERT 27

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