Achieving Access to Justice in a Business and Human Rights Context

Starting Point ◽

Parent Companies

Multinational enterprises (MNEs) can contribute to economic prosperity and social development in the countries where they operate. At the same time, their activities may directly or indirectly cause harm to humans and to the environment. However, MNEs are rarely held accountable for their involvement in human rights abuses and environmental damage. In recent years, activists have challenged corporate impunity by introducing innovative claims seeking to hold parent companies directly liable for the harm caused by their group’s activities. They have also strategically used this type of litigation to trigger corporate accountability reforms at international, regional, and national levels. Using national litigation experiences as a starting point and focusing on European civil-law countries, the book evaluates the extent to which litigation against MNEs has been effective in achieving access to justice and corporate accountability. It also considers whether ongoing regulatory developments, such as the adoption of mandatory human rights due diligence norms and the negotiations for a business and human rights treaty, can contribute to the realisation of access to justice and corporate accountability in the future.

The UN Guiding Principles’ Orbit and Other Regulatory Regimes in the Business and Human Rights Universe: Managing the Interface

Business and Human Rights Journal ◽

10.1017/bhj.2021.23 ◽

2021 ◽

pp. 1-16

Author(s):

Surya DEVA

Keyword(s):

Human Rights ◽

Due Diligence ◽

Legal Norms ◽

Starting Point ◽

Direct Duty ◽

Regulatory Regimes ◽

Guiding Principles ◽

Parent Companies ◽

Abstract What should be the interface of the United Nations Guiding Principles on Business and Human Rights (UNGPs) with other regulatory regimes in the business and human rights (BHR) universe? This article explores this issue in relation to two specific contexts. First, the interface of ‘social norm’ with evolving ‘legal norms’: relation of Pillar II of the UNGPs and mandatory human rights due diligence (HRDD) laws as well as parent companies’ direct duty of care for negligence. Second, the interface of ‘soft norms’ and evolving ‘hard norms’: how the UNGPs should inform the proposed BHR treaty. It is argued that legal norms should align with Pillar II only in a ‘loose manner’. They should draw from and build on the HRDD concept under Pillar II, but not be constrained by it, because a hard alignment of Pillar I laws with Pillar II could undercut the independent but complementary status of the two pillars. Moreover, the UNGPs should serve only as a ‘starting point’ and not the ‘end point’ in the evolution of other hard or soft norms in the future. Such an approach would be desirable because the UNGPs alone are unlikely to be enough to challenge or confront the existing structure of irresponsibility and inequality.

Human Rights Litigation against Multinationals in Practice

10.1093/oso/9780198866220.001.0001 ◽

2021 ◽

Keyword(s):

Human Rights ◽

Legal Aspects ◽

Collective Actions ◽

Human Rights Abuses ◽

Applicable Law ◽

Global North ◽

Formed Part ◽

Parent Companies

This book reviews the current position in this field, which has developed over the past 25 years, designed to hold multinationals to account, legally, for human rights abuses in the Global South. The authors are practising lawyers who have litigated and led prominent cases of legal significance in this field. Although the focus is on the Global North, where most of the cases have been brought—United Kingdom, United States, Canada, Australia, France, Netherlands, and Germany—there is also a chapter on South Africa. The cases cited include claims against parent companies for harm caused by subsidiary operations, claims for corporate complicity in violations perpetrated by States, and claims arising in a supply chain context. Whilst other books have included consideration of the legal aspects of many of the cases, the focus here is on the interrelated strategic and practical, as well as legal, considerations on which viability and prospects of success depend. In addition to questions of jurisdiction, applicable law, and theories of liability, obstacles to justice concerning issues such as access to information, collective actions, witness protection, damages and costs, and funding regimes (including a specific chapter on litigation funding), and issues relating to public pressure and settlement, are discussed. Although most of the authors act for victims, there is a substantial chapter providing the perspectives of business. Since this area of litigation has developed concurrently with, and has formed part of, the rapidly mushrooming field of business and human rights, the contextual relevance of the UNGPs is considered.

The Inter-American Court of Human Rights and Multinational Enterprises: Towards Business and Human Rights in the Americas?

The Law and Practice of International Courts and Tribunals ◽

10.1163/15718034-12341360 ◽

2017 ◽

Vol 16 (3) ◽

pp. 437-463 ◽

Cited By ~ 1

Author(s):

María Carmelina Londoño-Lázaro ◽

Ulf Thoene ◽

Catherine Pereira-Villa

Keyword(s):

Human Rights ◽

Rule Of Law ◽

Multinational Enterprises ◽

Qualitative Data ◽

Benefit Sharing ◽

Soft Law ◽

Due Diligence ◽

The Rule Of Law ◽

Business And Human Rights

Abstract This article analyses the role of the jurisprudence of the Inter-American Court of Human Rights (IACtHR) within a business and human rights framework. A qualitative data analysis of cases on multinational enterprises (mnes) identifies the following: that the obligations the IACtHR places upon States explicitly contemplate soft law instruments, such as the United Nations Guiding Principles on Business and Human Rights; and that there exist shared obligations with companies and attempts to regulate mne conduct by establishing conditions for due diligence, such as prior consultation, benefit-sharing and reparation measures for affected communities. Therefore, IACtHR rulings may contribute to the rule of law in so far as they have normative effects on member States, but they can also prove to be ineffective given the nature of corporate conduct and certain non-enforceable responsibilities.

Foreign Direct Liability Claims in Sweden: Learning from Arica Victims KB v. Boliden Mineral AB?

Nordic Journal of International Law ◽

10.1163/15718107-08304002 ◽

2014 ◽

Vol 83 (4) ◽

pp. 404-438 ◽

Cited By ~ 3

Author(s):

Rasmus Kløcker Larsen

Keyword(s):

Human Rights ◽

Transnational Corporations ◽

Environmental Damage ◽

Access To Justice ◽

Legal Basis ◽

Applicable Law ◽

Court Action ◽

Environmental Damages ◽

Liability Claims ◽

Parent Companies

On 12 September 2013 what may be the first foreign direct liability claim in Sweden was filed in the County Court of Skellefteå, a court action reflective of a growing wave of civil liability suits in European jurisdictions to hold transnational corporations accountable for human rights violations and environmental damages. This article examines the feasibility of foreign direct liability claims in Sweden, focusing on enabling conditions with regards to jurisdiction, collision rules and applicable law, substantial legal basis, procedural and practical circumstances, and the theories by which parent companies can be held liable for negligence in supervising acts of subsidiaries and contractors. It is demonstrated that foreign direct liability claims on environmental damage are indeed possible in Sweden, albeit with considerable constraints, primarily of a procedural and financial character. The conclusion provides some cautious remarks on the merits of the claim against Boliden and the reform options available to a Swedish government committed to improving the access to justice for victims of violations perpetuated by Swedish companies, their subsidiaries and contractors.

MNEs and human rights: from responsibilities to rights to governance

Critical Perspectives on International Business ◽

10.1108/cpoib-07-2018-0063 ◽

2019 ◽

Vol 16 (2) ◽

pp. 117-135

Author(s):

Stefan Zagelmeyer

Keyword(s):

Human Rights ◽

Multinational Enterprises ◽

Analytical Framework ◽

Governance System ◽

Content Type ◽

Human Rights Abuses ◽

Social Value Creation ◽

Consumption Community

Purpose This paper aims to explore the links between multinational enterprises (MNEs) and human rights abuses and review the development of international business (IB) and human rights initiatives. Arguing that the focus of the business and human rights debate has shifted from responsibility to rights, and subsequently to governance, it proposes a framework for analysing IB and human rights governance issues in the context of social value creation. Design/methodology/approach The paper develops a framework for analysing business and human rights governance with respect to the business and human rights field and four business and human rights subfields (labour, consumption, community and environment). Findings The analytical framework is organised around the relationships between human rights duty-bearers (companies) and human rights-holders (e.g., employees, consumers). It emphasises the role of actors and their interests, the relationships between actors, the objectives of these relationships and the role of governance mechanisms and structures, which, for a particular human rights subfield, define the IB and human rights governance system. Originality/value The analytical framework can be used by IB researchers, practitioners and public policymakers to describe, analyse, discuss and address business and human rights issues and challenges. It can be used for comparing and evaluating characteristics and properties of alternative institutional arrangements in the field of business and human rights. Furthermore, it can be used to support the design corporate non-market strategies as well as public policies.

IMPLEMENTING HUMAN RIGHTS DUE DILIGENCE THROUGH CORPORATE CIVIL LIABILITY

International and Comparative Law Quarterly ◽

10.1017/s0020589320000305 ◽

2020 ◽

Vol 69 (4) ◽

pp. 789-818 ◽

Cited By ~ 1

Author(s):

Nicolas Bueno ◽

Claire Bright

Keyword(s):

Human Rights ◽

Civil Liability ◽

Case Law ◽

Court Decisions ◽

Due Diligence ◽

Human Rights Abuses ◽

Corporate Liability ◽

The Relationship ◽

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.

Introduction

Corporate Environmental Accountability in International Law ◽

10.1093/oso/9780198738046.003.0001 ◽

2020 ◽

pp. 1-23

Author(s):

Elisa Morgera

Keyword(s):

Human Rights ◽

Environmental Law ◽

Environmental Damage ◽

Corporate Accountability ◽

International Environmental Law ◽

Private Companies ◽

Public International Law ◽

Key Concepts ◽

Negative Impacts

This chapter explains the need for an international approach to address the question of acceptable corporate environmental conduct both on the basis of egregious cases of environmental damage and day-to-day negative impacts of corporations that appear to defy States’ regulations and controls. It also points to the desirability of private companies’ proactive contribution to the attainment of internationally agreed goals. The chapter provides a historical and conceptual introduction to evolving approaches in addressing corporate environmental conduct in the framework of public international law, with a view to introducing two key concepts—corporate responsibility and corporate accountability. The chapter explains how these two concepts have emerged, and how they have reached different stages of development and acceptance in international environmental law. The chapter further relates these concepts to business responsibility to respect human rights under the UN Framework on Business and Human Rights.

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

German Law Journal ◽

10.1017/s2071832200022057 ◽

2017 ◽

Vol 18 (3) ◽

pp. 533-558

Author(s):

Benny Santoso

Keyword(s):

Human Rights ◽

Transnational Corporations ◽

Regulatory Framework ◽

Due Diligence ◽

Human Rights Abuses ◽

Regulatory Instruments ◽

The Media ◽

Uncritical Acceptance ◽

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.

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

Business and Human Rights Journal ◽

10.1017/bhj.2021.7 ◽

2021 ◽

pp. 1-14

Author(s):

Gabriela QUIJANO ◽

Carlos LOPEZ

Keyword(s):

Human Rights ◽

Due Diligence ◽

Human Rights Abuses ◽

Double Edge ◽

The Status ◽

Legislative Proposals ◽

Double Edge Sword ◽

John Ruggie ◽

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.

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

European Business Organization Law Review ◽

10.1007/s40804-021-00226-y ◽

2021 ◽

Author(s):

Juho Saloranta

Keyword(s):

Human Rights ◽

Corporate Social Responsibility ◽

Due Diligence ◽

Top Down ◽

Human Rights Abuses ◽

Eu Member States ◽

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.