International Convention Undermined by Asbestos Interests
Discussions over changes to the Hague Convention on Jurisdiction and Enforcement of Contract Judgments Containing a Choice of Court Clause1 took place in the Netherlands during June, 2005; once again, Canada sabotaged important global negotiations in order to further the interests of asbestos stakeholders.
In the first instance, Canadian delegates demanded that a specific asbestos exclusion be included in the treaty; failure to do so would result in Canada rejecting the treaty. In an attempt to achieve some kind of consensus, the majority of representatives accepted Canada's assurances that the proposed asbestos exclusion did little but preserve the status quo; as none of the delegates were experts on asbestos litigation, they believed the Canadians. The text for this exclusion was as follows:
Article 20 Limitation with respect to asbestos related matters
Article 20 provides that upon ratification, acceptance, approval or accession, a State (country) may declare that it will not apply the provisions of the Convention to exclusive choice of court agreements in asbestos related matters. This is because personal-injury and wrongful-death claims for asbestosis (sic) have caused serious problems in one particular State. This provision is intended to allow that State to opt out. It applies to actions concerning liability for injury, illness or death caused by exposure to asbestos.2
The “official” reason given for this provision was:
“because personal-injury and wrongful-death claims for asbestosis (sic) have caused serious problems in one particular State. This provision is intended to allow that State to opt out. It applies to actions concerning liability for injury, illness or death caused by exposure to asbestos and property damage claims for asbestos clean-up.”
Opening the door to one type of exclusion led to demands for others. The drafting committee of the Hague Convention, with the approval of Canada, embarked upon a manoeuvre to camouflage the asbestos exclusion by subsuming it within a general opt-out provision which allows the 64 signatory countries to designate subject matters of litigation they wish to exclude from the treaty. Canada will naturally exclude asbestos-related judgments. According to one observer, this clause is:
“an open check-book for all countries to name whatever important industries they want for exclusion from the treaty so as to protect them from liability risks from foreign judgments. Every country will now be able shield their own stated-owned enterprises, profitable industries, or joint ventures by an opt-out provision when they ratify the treaty…This considerably weakens the treaty and is clearly a loophole for countries to protect their profitable high risk industries which would otherwise be at risk under this treaty without the opt-out provision.”
In 1991 and 1997 Quebec and British Columbia respectively enacted legislation restricting the recognition of foreign asbestos-related judgments. This treaty will make the restrictions against recognition of asbestos-related judgments the national law of Canada instead of just Quebec and British Columbia. This is another in the long line of actions taken by the Canadian Government to curry favor with the Quebec pro-asbestos lobby. Last year, Canadian-led opposition to United Nations' proposals to regulate the global asbestos trade led observers to predict the beginning of the end for the Rotterdam Convention.
Global asbestos pushers are only able to trade profitably because they have, with the assistance of international agencies and conventions, evaded liability for the injuries caused by asbestos The true cost of asbestos use is paid for by asbestos victims, their families, local communities and the societies in which they live and not the industry fat cats and bureaucrats in Canada, Brazil, India, Russia and elsewhere. This greed-fuelled manipulation of international treaties and organizations can, in the 21st century, no longer be tolerated by civil society. The export earnings generated by the sale of asbestos is blood money; the Canadian Government's on-going support for this industry of mass destruction is both unethical and immoral. How many more international conventions will Canada tear apart in its slavish attempt to appease asbestos vested interests?
June 30, 2005
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1 The convention deals with business to business written contracts which include a choice of court: “The treaty provides for a mandatory enforcement of any contract judgment where the choice of court designated in the contract is utilized and it mandates that any other court than the stipulated Court must decline jurisdiction. This treaty does not apply to individual consumer cases. It covers insurance subrogations.”
2 Website of The Hague Conference on Private International Law http://www.hcch.net/
