Tort choice of law and international fundamental norms: A case study of Canada and the United States

Abstract

This article considers the tort choice of law rules in Canada and the United States – two highly internationalist societies with similar legal traditions but whose choice of law rules vary dramatically. The two jurisdictions are also known for their constant reference to international law in the resolution of domestic disputes. Moreover, Canada embodies both the common law and the civil law traditions. The aim here is twofold. The first is to evaluate the suitability of their choice of law rules for addressing cases alleging violations of international fundamental norms. The second is to see what other jurisdictions can learn from the experiences of these two jurisdictions in their adjudication of international norms.

This article makes these principal findings. While none of the two jurisdictions has a choice of law rule specially attuned to deal with violations of international norms, the operative rule in Canada contains reasonable flexibility to meet the needs of such cases. It finds within the assortment of tort choice of law rules in the US, some rules that at least mention the interests of the international community as an important consideration in the choice of applicable law, and that US courts already do look to international law to determine certain substantive issues arising in cases brought under the Alien Tort Statute.