Against Settlement in Transnational Business and Human Rights Litigation

Authors

Hassan M. Ahmad, Osgoode Hall Law School of York UniversityFollow

Document Type

Article

Abstract

In “Against Settlement,” Owen Fiss argued that settlement may not always be the optimal result of civil suits, particularly those that involve novel or ambiguous areas of law or ostensible power imbalances. That work spurred a range of scholarship around the merits and demerits of settlement. And although the settlement versus litigation debate is now almost four decades old, its currency persists in common law systems in which courts are, at times, called upon to expand or even re-envision doctrines or procedural rules. This article revisits that debate. It applies “Against Settlement” to transnational business and human rights litigation that has, over the past few decades, resulted in a number of high-profile civil claims across the common law world. In the context of that area of litigation, adjudication on the merits of a claim has benefits beyond the specific litigants involved. I focus on three transnational business and human rights case studies, all of which affirm one or more aspects of Fiss’s argument that the notion of settlement as a systemic solution ought to be challenged. First, I address how the October 2020 settlement in Nevsun Resources Ltd v Araya further obscures what continues to be a murky intersection of customary international law and Canadian common law. Second, I look at United Kingdom litigation around Barrick Gold’s labour practices in East Africa. In that instance, settlement has been ineffectual to stop the mining giant from continuing to engage in harmful practices that contribute to personal and environmental harm. And third, I discuss how the settlement in Garcia v Tahoe Resources Inc is an example of transnational corporate defendants side-stepping accountability when they settle out of court, even if they publicly acknowledge wrongdoing. The case studies suggest that Fiss’s argument remains relevant and, to the extent it can be operationalized, it should be taken seriously, despite the fact that Alternative Dispute Resolution (ADR) mechanisms have become a panacea for problems associated with state-based judicial dispute resolution processes.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Ahmad, Hassan M.. "Against Settlement in Transnational Business and Human Rights Litigation." Osgoode Hall Law Journal 62.1 (2025) : 67-108.
DOI: https://doi.org/10.60082/2817-5069.4097
https://digitalcommons.osgoode.yorku.ca/ohlj/vol62/iss1/3

References

1. Assistant Professor, Osgoode Hall Law School, York University, hahmad@osgoode.yorku.ca. This article benefited from feedback on the part of a number of individuals. Thank you in particular to Anna Lund, Trevor Farrow, Noel Semple, Robin Hansen, Nayha Acharya, Gerard Kennedy, Bruce Ryder, Kelly Gallagher-Mackay, and Sophia Martensen. Thank you as well to my Allard Law colleagues James Stewart and Graham Reynolds for inviting me to present this article at Faculty Colloquium. Lastly, Rudi Barwin and Haadia Khalid provided invaluable research assistance.

2. See e.g. Erik S Knutsen, “The Cost of Costs: The Unfortunate Deterrence of Everyday Civil Litigation in Canada” (2010) 36 Queen’s LJ 113 at 139-40.

3. See Rules of Civil Procedure, RRO 1990, Reg 194, r 49.

4. For some benefits to plaintiffs and defendants of confidentially settling civil disputes, see generally Arthur R Miller, “Private Lives or Public Access?” (1991) 77 ABA J 65; Erik S Knutsen, “Keeping Settlements Secret” (2010) 37 Fla St UL Rev 945 [Knutsen, “Keeping Settlements Secret”]; Laurie Kratky Dore, “Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement” 74 Notre Dame L Rev 283; Christopher R Drahozal & Laura J Hines, “Secret Settlement Restrictions and Unintended Consequences” (2006) 54 Kan L Rev 101.

5. See e.g. Derek C Bok, “A Flawed System of Law Practice and Training” (1983) 33 J Leg Edu 570; Paul Fenn & Neil Rickman, “Delay and Settlement in Litigation” (1999) 109 Econ J 476, DOI: https://doi.org/10.1111/1468-0297.00458.

6. See “Against Settlement” (1984) 93 Yale LJ 1073, DOI: https://doi.org/10.2307/796205 [Fiss, “Against Settlement”]. See also Owen M Fiss, “Justice Chicago Style” (1987) 1987 U Chicago Legal F 1. Fiss’s “Against Settlement” article and the scholarship that followed it were discussed in a 2009 symposium held by the Fordham Law Review, which also published the symposium proceedings. For a summary of the proceedings, see Howard M Erichson, “Foreword: Reflections on the Adjudication-Settlement Debate” (2009) 78 Fordham L Rev 1117. The rest of the proceedings follow the foreword.

7. For other works to which Fiss was responding, see e.g. Warren E Burger, “Isn’t There a Better Way?” (1982) 68 ABA J 274; Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981), DOI: https://doi.org/10.7208/chicago/9780226161341.001.0001; Richard A Posner, “An Economic Approach to Legal Procedure and Judicial Administration” (1973) 2 JLS 399, DOI: https://doi.org/10.1086/467503.

8. For a similar sentiment, see Trevor CW Farrow, Civil Justice, Privatization, and Democracy (University of Toronto Press, 2014) at 232-33, DOI: https://doi.org/10.3138/9781442663640. Farrow observes that, “without adequate public scrutiny, primarily through open court processes and the publication of precedents, there is a real danger that parties, particularly including those with power, will use the private system to circumvent public policies, accountability, and basic notions of procedural fairness.”

9. See Nevsun Resources Ltd v Araya, 2020 SCC 5 [Nevsun]; Vedanta Resources Public Limited Company & Anor v Lungowe & Ors, [2019] UKSC 20 [Vedanta]; Okpabi & Ors v Royal Dutch Shell Public Limited Company & Anor, [2021] UKSC 3 [Okpabi]; Yaiguaje v Chevron Corp, 2017 ONSC 135 [Yaiguaje]; Kiobel v Royal Dutch Petrol Co, 569 US 108 (2013); Nestlé USA Inc v Doe, 593 US 628 (2021).

10. The Holocaust, Corporations, and the Law: Unfinished Business (University of Michigan Press, 2017) at 2, DOI: https://doi.org/10.3998/mpub.7719249.

11. See Hassan M Ahmad, “The Missing Forum for Corporate Human Rights Violations in Africa” in Damilola S Olawuyi & Oyeniyi Abe, eds, Business and Human Rights Law and Practice in Africa (Edward Elgar, 2022) 208 at 211-15.

12. See Miller, supra note 4 and accompanying text; Knutsen, “Keeping Settlements Secret,” supra note 4; Dore, supra note 4; Drahozal & Hines, supra note 4.

13. See e.g. Knutsen, “Keeping Settlements Secret,” supra note 4 at 954. Knutsen writes:

The public view of the civil litigation system typically sees the system as a publicly funded, open system operating with transparency to engineer greater social good. Litigation and court decisions contribute to the public commons and enrich social debate through dispute resolution. Those who hold tight to the public view of civil litigation are either against the notion of confidential settlement agreements altogether or clamor for increasing regulation of secret settlements (ibid).

14. Law’s Empire (Harvard University Press, 1986) at 129.

15. It must remain forefront of mind throughout this article that its argument critiques settlement as a systemic solution in particularly novel or contentious disputes. This is exemplified by the three TBHR case studies discussed below. See Parts III-V. While authors such as Knutsen and Dore tout the benefits of confidential settlements, those benefits may be outweighed by other concerns in the types of disputes examined here. See Knutsen, “Keeping Settlements Secret,” supra note 4; Dore, supra note 4.

16. See Fiss, “Against Settlement,” supra note 6 at 1073; Bok, supra note 5.

17. Bok, supra note 5 at 582.

18. Ibid at 583.

19. Bok, supra note 5.

20. Ibid at 574. The concerns expressed by Bok and others have since been heeded by law schools across the common law world. Upper-year curricula in, for instance, Canada and the United States put a far greater emphasis now on experiential education couched in clinical programs. See e.g. Sari Graben, “Law and Technology in Legal Education: A Systemic Approach at Ryerson” (2021) 58 Osgoode Hall LJ 139, DOI: https://doi.org/10.60082/2817-5069.3634.

21. “Legal Culture as the Key to Affordable Access” in Trevor CW Farrow & Lesley A Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (UBC Press, 2020) 247 at 249, DOI: https://doi.org/10.59962/9780774863599-017.

22. But Fiss and Bok may have been talking past each other. Bok indeed acknowledged that there is a difference between a view of litigation as a private matter and it having a wider public purpose. See supra note 5 at 576 (“By concentrating so heavily on the immediate parties in dispute, judges are also more likely to reach results that affect other people in unexpected and undesirable ways”).

23. “Against Settlement,” supra note 6 at 1089.

24. Ibid. Accordingly, Fiss’s view on settlement does not oppose more recent views that settlement comes with benefits for plaintiffs as well as defendants. See Miller, supra note 4 and accompanying text; Knutsen, “Keeping Settlements Secret,” supra note 4; Dore, supra note 4; Drahozal & Hines, supra note 4.

25. See e.g. Michael Moffitt, “Three Things To Be Against (‘Settlement’ Not Included)” (2009) 78 Fordham L Rev 1203 at 1206 (suggesting that “Against Settlement” can be read to suggest that “litigation is always more worthy of praise than settlement”) [emphasis added]. On the contrary, Fiss distinguished “hard” cases from other ones. See “Against Settlement,” supra note 6 at 1087. Settlement as a systemic solution “demands a certain kind of myopia to be concerned only with the number of cases, as though all cases are equal simply because the clerk of the court assigns each a single docket number. All cases are not equal” (ibid).

26. Fiss, “Against Settlement,” supra note 6 at 1075.

27. Ibid at 1078.

28. Ibid.

29. Ibid.

30. Ibid at 1079, citing Fed R Civ P 23(a).

31. SO 1992, c 6, s 5(1)(e) [Class Proceedings Act].

32. See Carrie Menkel-Meadow, “For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference” (1985) 33 UCLA L Rev 485 at 497. She states, “[o]ne study of the role of courts found that 75% of federal judges and 56% of state judges initiate settlement discussions in jury trials.” See also Judith Resnik, “Managerial Judges” (1982) 96 Harv L Rev 374, DOI: https://doi.org/10.2307/1340797.

33. See Class Proceedings Act, supra note 31, s 27.1.

34. Fiss, “Against Settlement,” supra note 6 at 1085.

35. Ibid.

36. Ibid at 1086.

37. See Fiss, “Against Settlement,” supra note 6 at 1085. But see Resnik, supra note 32.

38. Cf Miller, supra note 4; Dore, supra note 4; Drahozal & Hines, supra note 4 (not explicitly acknowledging a distinction between “easy” and “hard” cases).

39. Supra note 32 at 486.

40. See also Resnik, supra note 32.

41. But see Bok, supra note 5 at 572 (seeing his position as advancing the public interest through efficiency measures).

42. See supra note 32 at 489-90.

43. Ibid at 501.

44. Ibid at 505.

45. Ibid.

46. See Fenn & Rickman, supra note 5 at 476.

47. See Kathryn E Spier, “The Dynamics of Pretrial Negotiation” (1992) 59 Rev Econ Studies 93, DOI: https://doi.org/10.2307/2297927; Fenn & Rickman, supra note 5 at 489.

48. See Fenn & Rickman, supra note 5.

49. Ibid at 489.

50. See “Lessons from the Alternative Dispute Resolution Movement” (1986) 53 U Chicago L Rev 424, DOI: https://doi.org/10.2307/1599646.

51. Ibid at 433.

52. Ibid at 434.

53. Ibid at 434.

54. Ibid.

55. See “Comments on Owen M. Fiss, Against Settlement (1984)” (2009) 78 Fordham L Rev 1265.

56. Ibid at 1267.

57. Ibid.

58. Ibid at 1268.

59. Ibid at 1269-70.

60. Ibid at 1270.

61. Ibid at 1269-70.

62. See supra note 25 at 1206.

63. Ibid at 1208.

64. Hryniak v Mauldin, 2014 SCC 7 at para 1.

65. Michael Moffitt, “Settlement Malpractice” (2019) 86 U Chicago L Rev 1825 at 1831.

66. See Knutsen, “Keeping Settlements Secret,” supra note 4 at 951-52.

67. See Moffitt, supra note 25.

68. See Knutsen, “Keeping Settlements Secret,” supra note 4 at 953. Knutsen, for example, explains that “[p]laintiffs and defendants alike use confidential settlement agreements to achieve goals that the otherwise simplistic monetization of the dispute cannot solve” (ibid).

69. Supra note 25 at 1214.

70. Ibid at 1215.

71. See “Alternative Dispute Resolution or Legalism? Beyond The Schism!” (2017) Galtung-Institut, Working Paper at 2, online (pdf): www.galtung-institut.de/papers/G-I-WP-2017-12-ADRL.pdf [perma.cc/C9ME-ZXGW]. See also Moffit, supra note 25.

72. Supra note 71 at 6.

73. Ibid at 8.

74. Taking Rights Seriously, 2nd ed (Harvard University Press, 1978) at 83.

75. Ibid at 82.

76. Ibid at 84-86.

77. Ibid at 82.

78. Commentaries on the Laws of England (Clarendon Press, 1765) at 69.

79. Fiss, “Against Settlement,” supra note 6 at 1087.

80. For example, the United States Civil Justice Survey of State Courts, 2005, found that 61 per cent of civil cases concluded by trial were tort claims, while 33 per cent were contract cases. Motor vehicle accidents (35 per cent), seller plaintiff (11 per cent), buyer plaintiff (10 per cent), and medical malpractice (9 per cent) were most frequently disposed of by trial. See Lynn Langton & Thomas H Cohen, Civil Bench and Jury Trials in State Courts, Bureau of Justice Statistics Special Report (U.S. Department of Justice, 2008) at 2, online (pdf): bjs.ojp.gov/content/pub/pdf/cbjtsc05.pdf [perma.cc/A8FJ-UNPF].

81. See e.g. Nora Freeman Engstrom, “When Cars Crash: The Automobile’s Tort Law Legacy” (2018) 53 Wake Forest L Rev 293 at 302-303. Motor vehicle claims proceed to trial at “unusual rates” and are characterized by a higher rate of success and shorter trials, due in part to legal principles more accessible to jurors.

82. See e.g. Mujica v Occidental Petroleum Corp, 381 F Supp (2d) 1164 (CD Cal 2005); Bowoto v Chevron Corp, 621 F (3d) 1116 (9th Cir 2010); Samantar v Yousuf, 560 US 305 (2010).

83. See Nevsun, supra note 9 at para 44.

84. See EC, 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, [1972] OJ, L 299/32 as amended by EC, Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland, [1978] OJ, L 304/1 and EC, Convention on the accession of the Hellenic Republic, [1982] OJ, L 388/1.

85. See Owusu v Jackson, [2002] EWCA Civ 877 at para 51.

86. See e.g. Weinstein, supra note 55 at 1268.

87. For background facts, see Araya v Nevsun Resources Ltd, 2016 BCSC 1856 at paras 14-70.

88. For discussion on the distinction between domestic torts and a potential CIL tort, see Nevsun, supra note 9 at para 124 (CIL norms “are inherently different from existing domestic torts. Their character is of a more public nature than existing domestic private torts since the violation of these norms ‘shock[s] the conscience of humanity’”).

89. Ibid at paras 5, 63.

90. Ibid at para 127.

91. Ibid at paras 111-12 (for the majority’s reasons for applying CIL to private corporations).

92. Ibid at para 124.

93. Ibid at para 125.

94. Ibid.

95. See Francois Larocque, “The Tort of Torture (Le Délit De Torture)” (2009) 17 Tort L Rev 158 at 169 (for the use of “garden variety” torts as a term to describe generally used domestic law torts).

96. See Hassan M Ahmad, “Transnational Torts against Private Corporations: A Functional Theory for the Application of Customary International Law Post-Nevsun” (2021) 54 UBC L Rev 299, DOI: https://doi.org/10.2139/ssrn.3759432.

97. See Yvette Brend, “Landmark Settlement is a Message to Canadian Companies Extracting Resources Overseas: Amnesty International,” CBC News (23 October 2020), online: www.cbc.ca/news/canada/british-columbia/settlement-amnesty-scc-africa-mine-nevsun-1.5774910 [perma.cc/YT5H-ALL6].

98. See supra note 25 at 1208.

99. See Fiss, “Against Settlement,” supra note 6 at 1076.

100. See Christopher Ewell, Oona A Hathaway & Ellen Nohle, “Has the Alien Tort Statute Made a Difference?: A Historical, Empirical, and Normative Assessment” (2022) 107 Cornell L Rev 1205 at 1275.

101. See 2022 ONSC 4747 [Toussaint].

102. Ibid at para 193; International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976, accession by Canada 19 May 1976) [ICCPR]; Optional Protocol to the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976, accession by Canada 19 May 1976).

103. See Toussaint, supra note 101 at para 177.

104. See R v Hape, 2007 SCC 26 at para 39; Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62.

105. General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UNHRC, 80th Sess, UN Doc CCPR/C/21/Rev.1/Add. 13 at para 15; Toussaint, supra note 101 at para 187.

106. Supra note 101 at para 189 [emphasis added].

107. Fiss, “Against Settlement,” supra note 6 at 1085.

108. See e.g. Amanda C Cohen, “Ripeness Revisited: The Implications of Ohio Forestry Association, Incorporated v Sierra Club for Environmental Litigation” (1999) 23 Harv Envtl L Rev 547.

109. See Fiss, “Against Settlement,” supra note 6 at 1085.

110. Ibid.

111. See e.g. Alexander Stremitzer, “Exploiting Plaintiffs through Settlement: Divide and Conquer,” Comment (2008) 164 JITE 27 at 27, DOI: https://doi.org/10.1628/jite-2008-0017.

112. See e.g. JTI-MacDonald Corp, Re, 2019 ONSC 1625. In this case, tobacco company JTI-MacDonald sought creditor protection as a result of a class action against it in which plaintiffs were awarded 13.5 billion Canadian dollars in damages.

113. See Knutsen, “Keeping Settlements Secret,” supra note 4 at 952-53; Dore, supra note 4 at 303-309 (reasons that plaintiffs and defendants may decide to confidentially settle a claim).

114. See In re Union Carbide Corp Gas Plant Disaster, 809 F (2d) 195 (2nd Cir 1987).

115. See Edward Broughton, “The Bhopal Disaster and Its Aftermath: A Review” (2005) 4 Envtl Health 1, DOI: https://doi.org/10.1186/1476-069X-4-6; Maya Steinitz, The Case for an International Court of Civil Justice (Cambridge University Press, 2018) at 49, DOI: https://doi.org/10.1017/9781316678428.

116. Again, the above statement does not negate the fact that from the perspective of an individual plaintiff a confidential settlement may nonetheless have significant financial and non-financial benefits. See e.g. Knutsen, “Keeping Settlements Secret,” supra note 4 at 952-53; Dore, supra note 4 at 303-309.

117. See Kesabo v African Barrick Gold, [2013] EWHC 3198 (QB).

118. Ibid at para 1.

119. See “Memorandum of Understanding between Tanzania Police Force and North Mara Gold Mine” (8 July 2010), online (pdf): RAID www.raid-uk.org/sites/default/files/MoU%20re%20North%20Mara%20policing%202010.pdf [perma.cc/8PR7-5HJX].

120. See John Vidal, “British Gold Mining Firm Agrees Settlement over Deaths of Tanzanian Villagers,” The Guardian (10 February 2015), online: www.theguardian.com/environment/2015/feb/10/british-gold-mining-settlement-deaths-tanzanian-villagers [perma.cc/KH7H-6PXD].

121. See RAID, Human Rights Violations Under Private Control: Acacia Mining’s Grievance Mechanism and the Denial of Rights (RAID, 2019) at 16, online (pdf): www.raid-uk.org/sites/default/filesraid_report_on_private_grievance_mechanisms_final_12_june_2019.pdf [perma.cc/RHX5-F4JN] [RAID, Human Rights Violations Under Private Control].

122. See MiningWatch Canada & RAID, Background Brief: Adding Insult to Injury at the North Mara Gold Mine, Tanzania (MiningWatch Canada & RAID, 2016) at 2, online: miningwatch.ca/sites/default/files/adding_insult_to_injury_north_mara_0.pdf [perma.cc/C5H2-EPEJ].

123. Ibid at 1.

124. Ibid at 2.

125. See Norton Rose Fulbright, Press Release, “Norton Rose Fulbright advises Barrick Gold on US$1.2 billion take-private of Acacia Mining and on related arrangements with the Government of Tanzania” (September 2019), online: www.nortonrosefulbright.com/en-me/news/335269a0/norton-rose-fulbright-advises-barrick-gold-on-take-private-of-acacia-mining [perma.cc/FM4L-XTJB].

126. See Barrick Gold Corporation, Press Release, “The Launch of Twiga Minerals Heralds Partnership Between Tanzanian Government and Barrick” (20 October 2019), online: www.barrick.com/English/news/news-details/2019/The-Launch-of-Twiga-Minerals-Heralds-Partnership-Between-Tanzanian-Government-and-Barrick-/default.aspx [perma.cc/96BP-S3JJ].

127. RAID reported that from 2014-2016, Acacia (as it was called then) itself acknowledged thirty-two “trespasser-related” deaths at the mine. See RAID, Human Rights Violations Under Private Control, supra note 121 at 4. The Tanzanian government’s 2016 inquiry, though, reported that “65 people have been killed and 270 people injured by police responsible for mine security.” MiningWatch Canada & RAID, supra note 122 at 2.

128. See Acacia Mining, Community Grievance Process: Standard Operating Procedure (Acacia, 2017) at 12, 30, online: web.archive.org/web/20180403160946/http://www.acaciamining.com/~/media/Files/A/Acacia/documents/grievance/community-grievance-process-sop-20171208.pdf [perma.cc/29Q7-JSWR]. See also RAID, Human Rights Violations Under Private Control, supra note 121 at 3.

129. RAID, Human Rights Violations Under Private Control, supra note 121 at 3. By RAID’s estimates, 82 per cent of the 163 security-related complaints were rejected outright. See RAID, Briefing Paper: Police Violence at the North Mara Gold Mine (RAID, 2022) at 19, online: RAID www.raid-uk.org/sites/default/files/barrick-north-mara-police-violence-briefing-march-2022.pdf [perma.cc/4PU3-8E3B] [RAID, North Mara Briefing Paper].

130. See RAID, Human Rights Violations Under Private Control, supra note 121 at 31.

131. Ibid at 39-40. In that way, BGC’s internal complaint mechanism pushes back against the assertion made by some authors that confidentiality in settlements renders benefits to individual plaintiffs. See Knutsen, “Keeping Settlements Secret,” supra note 4 at 952-53.

132. RAID, Principles Without Justice: The Corporate Takeover of Human Rights (RAID, 2016) at 48, online (pdf): www.miningwatch.ca/sites/default/files/principles-without-justice_0.pdf [perma.cc/5HC8-9XJF].

133. RAID, North Mara Briefing Paper, supra note 129 at 20.

134. Ibid.

135. MiningWatch Canada & RAID, supra note 122 at 4-5.

136. Ibid at 3.

137. See RAID, North Mara Briefing Paper, supra note 129 at 16.

138. See Geoffrey York, “Barrick Ordered to Produce Thousands of Documents Related to Police Violence at Tanzania Mine,” The Globe and Mail (14 April 2022), online: www.theglobeandmail.com/business/article-barrick-ordered-to-produce-thousands-of-documents-related-to-police [perma.cc/62YY-V9JQ].

139. See RAID, “Tanzanian Victims Commence Legal Action in UK against Barrick” (10 February 2020), online: www.raid-uk.org/tanzanian-victims-commence-legal-action-in-uk-against-barrick [perma.cc/FP39-SBXA].

140. See Barrick Gold Corporation, Sustainability Report (Barrick, 2021) at 84, online (pdf): Barrick s25.q4cdn.com/322814910/files/doc_downloads/sustainability/Barrick_Sustainability_Report_2021.pdf [perma.cc/TLP8-XQ7J].

141. See e.g. RAID, North Mara Briefing Paper, supra note 129.

142. See Knutsen, “Keeping Settlements Secret,” supra note 4 at 952-53 for some of these benefits.

143. MiningWatch Canada & RAID, supra note 122 at 2 [emphasis added].

144. RAID, North Mara Briefing Paper, supra note 129 at 1.

145. Ibid at 19.

146. Ibid at 1.

147. Ibid at 1-2.

148. Ibid at 10.

149. Ibid at 8.

150. Ibid at 9.

151. Menkel-Meadow, supra note 32 at 502.

152. But see Miller, supra note 4; Knutsen, “Keeping Settlements Secret,” supra note 4; Dore, supra note 4; Drahozal & Hines, supra note 4 (for the varied benefits of confidential settlements).

153. “Privatizing Commercial Law: Lessons from ICANN” (2002) 6 J Small & Emerging Bus L 257 at 263, DOI: https://doi.org/10.2139/ssrn.267246.

154. But see Miller, supra note 4 (arguing that doctrinal vacuums and progressions are not necessarily what drives plaintiffs in the civil litigation process).

155. See Garcia v Tahoe Resources Incorporated, 2015 BCSC 2045 at paras 87, 106 [Tahoe Resources SC].

156. Ibid at paras 30-33, 106. See also Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28, s 11 [CJPTA].

157. See CJPTA, supra note 156, s 11.

158. See Garcia v Tahoe Resources Inc, 2017 BCCA 39 at para 131 [Tahoe Resources CA].

159. Ibid at paras 75-80.

160. Ibid at para 113.

161. Ibid at para 41.

162. See Mining Weekly, “Court Case Sets Precedent for Claims Arising from Overseas Activities of Canadian Miners” (30 July 2019), online: www.miningweekly.com/article/court-case-sets-precedent-for-claims-arising-from-overseas-activities-of-canadian-miners-2019-07-30 [perma.cc/6HWU-ZZSN].

163. Pan American Silver Corp, News Release, “Pan American Silver Announces Resolution of Garcia v. Tahoe Case” (30 July 2019), online: www.panamericansilver.com/news/pan-american-silver-announces-resolution-of-garcia-v-tahoe-case [perma.cc/L5Y4-XN5N].

164. Mining Weekly, supra note 162.

165. See Fiss, “Against Settlement,” supra note 6 at 1085.

166. Ibid at 1086.

167. See supra note 10.

168. Ibid at 2.

169. Ibid at 170.

170. See e.g. Matthew A Shapiro, “The Indignities of Civil Litigation” (2020) 100 BUL Rev 501, DOI: https://doi.org/10.2139/ssrn.3369624; Paul Stancil, “Discovery and the Social Benefits of Private Litigation” (2018) 71 Vand L Rev 2171 (on the benefits of discovery in civil litigation).

171. See Knutsen, “Keeping Settlements Secret,” supra note 4 at 951 (arguing for reputational benefits that accrue to the defendant upon settling).

172. Pan American’s share price was 17.02 USD in July 2019 and 29.44 USD in January 2020. See The Globe and Mail, “Pan American Silver, Charts” (last visited 7 November 2022), online: www.theglobeandmail.com/investing/markets/stocks/full-chart/PAAS-T [perma.cc/8Z5H-N8UG].

173. Ibid.

174. See e.g. Damon van der Linde, “$15B Tobacco Ruling Barely Dents Stocks as Analysts Predict Penalty will Come Down,” Financial Post (2 June 2015), online: financialpost.com/investing/15b-tobacco-ruling-barely-dents-stocks-as-analysts-predict-penalty-will-come-down [perma.cc/XR7A-RXY9].

175. Courts without Borders: Law, Politics and US Extraterritoriality (Cambridge University Press, 2016) at 232, DOI: https://doi.org/10.1017/CBO9781316480304. See also Francois Larocque, “Recent Developments in Transnational Human Rights Litigation: A Postscript to Torture as Tort” (2008) 46 Osgoode Hall LJ 605 at 628, DOI: https://doi.org/10.60082/2817-5069.1187. Laroque states, “[T]o my knowledge, not a single decision on the merits has yet been rendered against a corporate defendant in relation to allegations of extraterritorial human rights violations.” As Penelope Simons and Audrey Macklin note, “[t]he result of such…obstacles is that many of these [home state] cases will never be heard on their merits.” See The Governance Gap: Extractive Industries, Human Rights and the Home State Advantage, 1st ed (Routledge, 2014) at 255.

176. Corporations and Transnational Human Rights Litigation, 1st ed (Hart, 2004) at 14-15.

177. See Tahoe Resources CA, supra note 158 at para 44.

178. See Yaiguaje, supra note 9 at paras 10, 57.

179. See Tahoe Resources SC, supra note 155 at para 1.

180. See Vedanta, supra note 9; Okpabi, supra note 9.

181. See e.g. Tahoe Resources SC, supra note 155; Tahoe Resources CA, supra note 158. The case reiterates the assertion of this article, also once made by Fiss, that settlement as a systemic path to resolving contentious disputes has negative consequences, despite benefits that accrue to individual plaintiffs and defendants, particularly in more routine cases.

182. See supra note 9.

183. Ibid.

184. See 2013 ONSC 1414.

185. For a domestic example of this point, see Farrow, supra note 8 at 226-27 (discussing the Ontario Lottery and Gaming Corporation’s myriad settlements with “problem gamblers”).

186. Climate change litigation is one analogous area that appears to be on the cusp of coming before Canadian judges more frequently. For examples of the contentious doctrinal principles that accompany climate change litigation, see La Rose et al v Canada, 2020 FC 1008; Mathur v Ontario, 2020 ONSC 6918.

187. See e.g. Adam M Dodek, “Reconceiving Solicitor-Client Privilege” (2010) 35 Queen’s LJ 493; Gloria Geddes, “The Fragile Privilege: Establishing and Safeguarding Solicitor-Client Privilege” (1999) 47 Can Tax J 799.

188. For recent analysis on a public interest exception, see e.g. Joanna Langille, “Frontiers of Legality: Understanding the Public Policy Exception in Choice of Law” (2023) 73 UTLJ 216, DOI: https://doi.org/10.3138/utlj-2021-0085.

189. See e.g. Deanna J Mouser, “Analysis of the Public Policy Exception after Paperworkers v. Misco: A Proposal to Limit the Public Policy Exception and to Allow the Parties to Submit the Public Policy Question to the Arbitrator” (1990) 12 Indus Rel LJ 89.