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INTERNATIONAL TORT RISK for the parties, thus triggering their discretion to decline jurisdiction. In a third case, a lower court rejected the defendant's arguments on both jurisdiction and forum non conveniens but its ruling was overturned on appeal and the claim failed for factual reasons. And finally, in a fourth case, the action again did not fail because of subject matter jurisdiction, rather the court dismissed the action based on lack of proximity and foreseeability. These cases are set out in tabular form on the preceding page along with Hudbay, which awaits trial on the merits. Hudbay is a Canadian mining company with headquarters in Toronto, incorporated under the Canada Business Corporations Act, with mining properties located in both South and North America. The case is actually three lawsuits brought by members of the indigenous Mayan Q'eqchi' population from El Estor, Guatemala, which are being heard together for the purposes of the preliminary motions. Each action focuses on alleged abuses committed by Hudbay security personnel at its former mining project in Guatemala in 2007 and 2009. The plaintiffs have argued that Hudbay should be held responsible for negligence because its Toronto executives made decisions for its subsidiary with regard to mine security and relations with local indigenous people. The plaintiffs are supported by Am- WHILE INTERNATIONAL tort litigation theoretically affects CCOAs in all industries, the extractive sector is at particularly high risk for international tort liability given the reality that many companies operate in highrisk foreign jurisdictions. nesty International, which was granted leave to intervene to make submissions regarding international legal norms concerning the existence and scope of a duty of care. Amnesty argued that the case was properly tried in Ontario, citing jurisprudence from Canada and the UK as well as evolving international legal principles. In February 2013, reports surfaced that Hudbay abruptly discontinued its jurisdictional arguments that the case should be heard in Guatemala, not Canada. This opened the door for the attentiongrabbing ruling, handed down on July 22, 2013, by the Ontario Superior Court of Justice, which defeated preliminary motions seeking to dismiss the claims as disclosing no reasonable cause of action. It is the first time that a Canadian court has ruled that a claim can be made against a Canadian parent corporation for negligently failing to prevent human rights abuses by its subsidiary in a foreign jurisdiction. Counsel for Hudbay advised media sources on August 30, 2013, that it will not appeal this ruling, denies the allegations and "would defend itself 'vigorously against them'" (A. Posadzki, The Canadian Press, 31 August 2013). Hudbay may prove to be a landmark case. While there may be serious jurisdictional issues to be argued and decided in future cases, 52 | LEXPERT • December 2013 | www.lexpert.ca our simple point here is that the substantive international law foundations for such cases are incorporated within and arguable under Canadian law in Canadian courts. CCOAs, particularly those engaged in extractive projects abroad, should be prepared to defend cases of this kind on their merits. Best Practices While international tort litigation theoretically affects CCOAs in all industries, the extractive sector is at particularly high risk for international tort liability given the reality that many companies operate in high-risk foreign jurisdictions, typically developing nations with a history of inter-state and intra-state violence. One of the main risks in this sector relates to the use of contracted security providers at foreign project sites. Accordingly, CCOAs should consider undertaking an appropriately detailed assessment of who is selected to provide security services, how they are instructed to behave when encountering local residents, and what measures are in place to monitor and manage their interactions. Another serious and tragically widespread risk relates to gender-based and sexual violence, which tend to be especially prevalent during times of conflict in unstable jurisdictions. Companies are well-advised to pay special attention to this issue. Prudent CCOAs operating in all industries should consider engaging in a so-called "human rights due diligence" exercise that is commensurate with the risk of infringements posed by the size and nature of their operations. It is also essential that companies do not put into place a system that is too cumbersome and resource-intensive for their needs because, if the diligence plan does not suit the company's involvement in a project, it may not be followed at all. The United Nations' Protect, Respect and Remedy: a Framework for Business and Human Rights (Geneva: UN Doc A/HRC/8/5, 7 April 2008), which was updated and elaborated on in the Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework (UN Doc A/HRC/17/31, 21 March 2011) provides a scalable agenda for CCOAs to engage in risk-reducing human rights due diligence. The Human Rights and Business Dilemmas Forum noted six central components, which are summarized below alongside commentary from our experience in practice. 1. Policy Statement: A useful policy statement both communicates the company's commitment to human rights and also provides specific guidance on what supporting actions the company will undertake. In order to be effective, the policy must be actively supported by directors and officers of the company and also reflected in any operating manuals, policies and procedures. Accessibility is a critical component to disseminating the policy so the company should be mindful of the language and literacy needs of its local workforce. 2. Reassessment: Periodic assessment of the appropriateness of the company's human rights policy is wise. As the company's activities and/or its operations environment change, its human rights risk may also evolve. For example, exploration-stage companies typically need a much less robust human rights program than productionstage companies. Another example is an operating environment that becomes riskier because of a change in political leadership or an escalation in violence. Company leadership should engage with

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