In an article published recently in the National Post, Davies partner Luis Sarabia shared his perspectives on the upcoming appeal to the Supreme Court of Canada regarding the application of customary international law to Canadian businesses operating abroad.

“Customary international law (CIL) is directed at the behaviour of sovereign states and should not be incorporated into private law other than by an Act of Parliament,” explains Luis, who will be representing the Mining Association of Canada before the SCC.

Luis believes that if the SCC opens the door to using CIL, it will be a forceful precedent to courts imposing CIL and all its vagaries on the private sector, a situation that will create great uncertainty. “One of the main problems is that customary international law can be unpredictable, partly because not everyone agrees on the norms and partly because it is constantly evolving as state conduct evolves,” he explains. “So how do you incorporate customary international law into Canadian law absent certainty as to what customary law is or will be?”