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.