Corporate Liability Design for Human Rights Abuses: Individual and Entity Liability for Due Diligence

2020 ◽  
Author(s):  
Nick Friedman
Keyword(s):  
Economic Theory ◽  
Human Rights ◽  
Policy Implications ◽  
Global Supply Chains ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Human Rights Norms ◽  
Corporate Liability ◽  
Human Rights Due Diligence ◽  
Individual Human

Abstract In this article, I critically review the economic theory of corporate liability design, focusing on the allocation of liability between a corporation and its individual human agents. I apply this theory to transnational commercial contexts where human rights abuses occur and assess the likely efficacy of some putative liability regimes, including regimes requiring corporations to undertake human rights due diligence throughout their global supply chains. I advance a set of general considerations justifying the efficacy of due diligence in relation to alternative liability regimes. I argue, however, that due diligence regimes will likely under-deter severe human rights abuses unless they are supported by substantial entity-level sanctions and, in at least some cases, by supplementary liability for individual executives. The analysis has significant policy implications for current national and international efforts to enforce human rights norms against corporations.

scholarly journals IMPLEMENTING HUMAN RIGHTS DUE DILIGENCE THROUGH CORPORATE CIVIL LIABILITY

2020 ◽  
Vol 69 (4) ◽  
pp. 789-818 ◽  
Author(s):  
Nicolas Bueno ◽  
Claire Bright
Keyword(s):  
Human Rights ◽  
Civil Liability ◽  
Case Law ◽  
Court Decisions ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Business And Human Rights ◽  
Corporate Liability ◽  
The Relationship ◽  
Human Rights Due Diligence

AbstractSince the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.

scholarly journals Public Procurement as a Tool for the Protection and Promotion of Human Rights: a Study of Collaboration, Due Diligence and Leverage in the Electronics Industry

2018 ◽  
Vol 3 (1) ◽  
pp. 75-95 ◽  
Author(s):  
Olga MARTIN-ORTEGA
Keyword(s):  
Human Rights ◽  
Supply Chain ◽  
Working Conditions ◽  
Public Procurement ◽  
Electronics Industry ◽  
Global Supply Chains ◽  
Due Diligence ◽  
Economic Actor ◽  
Human Rights Due Diligence

AbstractThis article explores the innovative use of public procurement as a tool to respect, protect and promote human rights by capitalizing on the significant leverage that public buyers have over corporate practices in their supply chain. It provides an analysis of Electronics Watch, an organization that focuses on the role of states’ own procurement practices as central to the state duty to protect the human rights of those who are affected by its activities as an economic actor. Through the assessment of the Electronics Watch model this article argues that by bringing together the economic leverage of public buyers and corporate human rights due diligence, one can create transformative tools for the improvement of working conditions in global supply chains.

scholarly journals “Just Business” – Is the Current Regulatory Framework an Adequate Solution to Human Rights Abuses by Transnational Corporations?

2017 ◽  
Vol 18 (3) ◽  
pp. 533-558
Author(s):  
Benny Santoso
Keyword(s):  
Human Rights ◽  
Transnational Corporations ◽  
Regulatory Framework ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Business And Human Rights ◽  
Regulatory Instruments ◽  
The Media ◽  
Uncritical Acceptance ◽  
Human Rights Due Diligence

Parallel to exponential proliferation and ever-increasing allegations of human rights violations by transnational corporations, the sparks produced by the friction between the normatively distinct disciplines of business and human rights have invited scrutiny across the media, academia, and industries alike. Given the fact that regulatory capacities of home and host states have evidenced an inability to keep pace with the developments, concerted efforts at the international level are imperative. By constructing its own benchmark of adequacy with reference to regulatory instruments' underlying objectives, this Article explores whether the existing regulatory framework is adequate, with a particular focus on the UN Framework and UN Guiding Principles—currently the most robust regime yet. The Article's analysis centers on (1) the terminologies utilized, (2) the human rights due diligence mechanism, and (3) access to remedies requirements, to reveal their inherent inadequacy with the hope of warning against uncritical acceptance and to inform future developments.

scholarly journals Rise of Mandatory Human Rights Due Diligence: A Beacon of Hope or a Double-Edge Sword?

2021 ◽  
pp. 1-14
Author(s):  
Gabriela QUIJANO ◽  
Carlos LOPEZ
Keyword(s):  
Human Rights ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Business And Human Rights ◽  
Double Edge ◽  
The Status ◽  
Legislative Proposals ◽  
Double Edge Sword ◽  
John Ruggie ◽  
Human Rights Due Diligence

Abstract This article discusses the evolution, current trends, limitations and controversies around the understanding and practice of human rights due diligence (HRDD), a concept developed in the course of the work of United Nations (UN)-mandate holder, John Ruggie, and enshrined in the UN Guiding Principles on Business and Human Rights. While the concept has gathered broad acceptance and a growing number of legislative proposals are seeking to entrench it in law, significant differences of opinion exist among stakeholders as to its nature, objectives and relationship, if any, with legal liability. These differing understandings are at play in a contest to shape future legislation. Some of these carry significant risks for rights-holders, notably the risk of outcome being superseded by process and superficial, compliance-oriented HRDD prevailing in the law or in its interpretation and practice. As legislative efforts continue, the authors warn against the risk of hollow laws which do little to change the status quo or, even worse, inadvertently provide a tool to further impunity for business-related human rights abuses.

scholarly journals The EU Whistleblowing Directive: An Opportunity for (Operationalizing) Corporate Human Rights Grievance Mechanisms?

2021 ◽  
Author(s):  
Juho Saloranta
Keyword(s):  
Human Rights ◽  
Corporate Social Responsibility ◽  
Due Diligence ◽  
Top Down ◽  
Human Rights Abuses ◽  
Eu Member States ◽  
Business And Human Rights ◽  
Corporate Social ◽  
Human Rights Due Diligence ◽  
The Eu

AbstractDespite being an internationally accepted corporate social responsibility framework, the United Nations Guiding Principles on Business and Human Rights have not managed to provide victims of corporate human rights violations with access to remedy. The European Commission has announced plans to introduce an EU-level human rights due diligence directive which may include corporate grievance mechanisms. This article considers potential synergies between the planned directive and the mechanism laid down in the Whistleblowing Directive. Three issues are highlighted. First, stakeholders usually face retaliation after making a complaint about human rights abuses in a company’s operations. By setting formal levels of protection against retaliation, the Whistleblowing Directive offers a regulatory framework to change this reality. Second, conducting effective human rights due diligence must be based on meaningful consultation with all relevant stakeholders. If companies approach this issue in a top-down manner using auditing firms, they risk non-compliance with human rights due diligence requirements. Therefore, the legislation should include corporate grievance mechanisms to match remedies with victims’ expectations. Third, in terms of corporate grievance mechanisms, victims often lack resources to participate in them in a fair and respectful manner. This requires EU Member States to use their legislative power to lay down regulations that effectively enhance cooperation and coordination with independent monitoring bodies. To enhance the development as to access to remedy, the Whistleblowing Directive offers synergies through which to achieve greater accessibility, transparency, and victim empowerment. Corporate grievance mechanisms, facilitated by the Whistleblowing Directive, could take this a step further.

Establishing a Corporate Responsibility Ombudsman: Enhancing remedy through state-based non-judicial mechanisms?

2021 ◽  
Vol 28 (1) ◽  
pp. 102-122
Author(s):  
Juho Saloranta
Keyword(s):  
European Union ◽  
Human Rights ◽  
Corporate Responsibility ◽  
Decision Makers ◽  
Sufficient Evidence ◽  
Export Credit ◽  
Due Diligence ◽  
The European Union ◽  
Credit Financing ◽  
Human Rights Due Diligence

This article assesses the efficiency of non-judicial grievance mechanisms in providing victims of corporate human rights violations with improved access to remedy. As no such mechanism is currently available, this article formulates a proposal for a new mechanism in the form of a corporate responsibility ombudsman, which would offer a great deal of flexibility as well as being an inexpensive, expeditious and informal manner of dealing with such issues. The article argues in favour of utilizing states’ regulatory arsenal to improve victims’ access to remedy extraterritorially. Based on recent international developments, I elaborate approaches to human rights due diligence regulation and export credit financing by means of two corporate responsibility ombudsman proposals. In relation to these proposals, I divide the effectiveness criteria of Principle 31 of the United Nations Guiding Principles into three main categories: empowerment, investigation and enforcement. Since obtaining sufficient evidence is of paramount to those seeking remedies for violations of corporate responsibility, states should bestow quasi-judicial powers on corporate responsibility ombudsmen to achieve efficiency, which could also create legitimacy. This article provides decision-makers and scholars with insights into how access to remedy could be synchronized with the momentum of human rights due diligence legislation in the European Union and beyond.

From a Stark Utopia to Everyday Utopias

2018 ◽  
Vol 60 (1) ◽  
pp. 575-606
Author(s):  
Michelle Staggs Kelsall
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Transnational Corporations ◽  
Public Domain ◽  
Due Diligence ◽  
Karl Polanyi ◽  
Business And Human Rights ◽  
Human Rights Council ◽  
The United Nations ◽  
Human Rights Due Diligence

This article considers the emergence of the Business and Human Rights agenda at the United Nations (UN). It argues that the agenda can be seen as an example of the UN Human Rights Council attempting to institutionalise everyday utopias within an emerging global public domain. Utilising the concept of embedded pragmatism and tracing the underlying rationale for the emergence of the agenda to the work of Karl Polanyi, the article argues that the Business and Human Rights agenda seeks to institutionalise human rights due diligence processes within transnational corporations in order to create a pragmatic alternative to the stark utopia of laissez-faire liberal markets. It then provides an analytical account of the implications of human rights due diligence for the modes and techniques business utilises to assess human rights harm. It argues that due to the constraints imposed by the concept of embedded pragmatism and the normative indeterminacy of human rights, the Business and Human Rights agenda risks instituting human rights within the corporation through modes and techniques that maintain human rights as a language of crisis, rather than creating the space for novel, everyday utopias to emerge.

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