Breaching the Interpretative Wall between Private and Public Commercial Contracts

2020 ◽  
Vol 16 (4) ◽  
pp. 511-532
Author(s):  
Maria Edith Lindholm Gausdal
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Global Value Chains ◽  
Value Chains ◽  
The Public ◽  
Private And Public ◽  
Business To Business ◽  
Public Contract ◽  
Actual Fusion

AbstractFrom a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether ‘the interpretative wall’ should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.

Toward a Corporate Duty for Lead Companies to Respect Human Rights in Their Global Value Chains?

2020 ◽  
Vol 22 (4) ◽  
pp. 667-697 ◽  
Author(s):  
Claire Bright ◽  
Axel Marx ◽  
Nina Pineau ◽  
Jan Wouters
Keyword(s):  
Human Rights ◽  
Corporate Responsibility ◽  
Case Law ◽  
Global Value Chains ◽  
Value Chains ◽  
Business Partners ◽  
Business And Human Rights ◽  
Social License To Operate ◽  
Social License ◽  
High Level

AbstractThe corporate responsibility to respect human rights was formally introduced in 2011 with the unanimous endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) by the UN Human Rights Council. It is grounded in social expectations and forms part of the companies' “social license to operate.” This paper argues that this responsibility is progressively turning into a legal duty for lead companies to respect human rights in those types of value chains which are characterized by a high level of control by a lead company over its business partners. Our argument rests on two recent legal developments. Firstly, the article analyzes the judicialization of the corporate responsibility to respect in the case law on parent company liability in various jurisdictions, which, we argue, is highly likely to have some implications in relation to certain types of value chains so as to trigger the liability of lead companies for the human rights harms arising out of the activities of entities over which they exercise sufficient control. Secondly, the article delves into the legislative developments which increasingly require lead companies to exercise due diligence so as to prevent and address adverse human rights impacts in their own activities and global value chains.

scholarly journals Editorial – Business and human rights in global value chains

2019 ◽  
Vol 23 (4) ◽  
pp. 337-345 ◽  
Author(s):  
Karin Buhmann ◽  
Mark B Taylor ◽  
Elisa Giuliani
Keyword(s):  
Human Rights ◽  
Global Value Chains ◽  
Value Chains ◽  
Business And Human Rights

Framing Multicultural Challenges in Freedom of Religion Terms

2012 ◽  
Vol 30 (4) ◽  
pp. 388-416 ◽  
Author(s):  
Katayoun Alidadi ◽  
Marie-Claire Foblets
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Freedom Of Religion ◽  
Practical Case ◽  
The Public ◽  
The Family ◽  
Case Application ◽  
Project Network ◽  
Opening Up ◽  
Minimalist Conception

Multicultural challenges in Europe are being framed in human rights language, and in particular in terms of the freedom of thought, conscience and religion. The question is whether the practical case-by-case application of the fundamental right to freedom of religion in national and European case law facilitates a ‘deep (and normative) diversity’ in Europe or rather only allows space for a limiting or ‘conditioned diversity’ instead. While opening up possibilities for minorities to live out their lives in accordance to their deeply-held convictions, it seems to us that the human rights working frame in a predominantly ‘minimalist’ conception comes with its inherent limitations as to the management of Europe's religious diversity. While human rights purport to liberate and protect, they also impose conditions, criteria and standards that are grounded in a Western vision of law, society and religion. Religious minorities stand to gain from playing by the human rights rules as long as they accept to mould, shape and limit their claims to fit dominant conceptions, which perhaps diverge from their own understandings, needs and aspirations. Drawing on case law collected through the RELIGARE project network, this article aims to illustrate some of the limitations and confines that Europe's diverse communities face in the areas of the workplace, the public place, the family, and State support to religions.

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

22. Misuse of Private Information

2015 ◽  
Author(s):  
Christian Witting
Keyword(s):  
Human Rights ◽  
Private Information ◽  
Case Law ◽  
Public Domain ◽  
Differential Treatment ◽  
European Convention ◽  
The Public

This chapter examines the tort of misuse of private information. It explains that the tort has its origins in the equitable wrong of breach of confidence. It discusses the gist and elements of this tort and highlights the influence of Article 8 of the European Convention on Human Rights (ECHR) on the case law on misuse of private information. This chapter also discusses potential defences, which include consent to the disclosure and the differential treatment of private information in the public domain.

Global Governance und Menschenrechte

2020 ◽  
Author(s):  
Janne Mende
Keyword(s):  
Human Rights ◽  
Global Governance ◽  
Public And Private ◽  
Public Spheres ◽  
The Public ◽  
Normative Power ◽  
Private And Public ◽  
Decision Making Processes ◽  
New Perspective ◽  
Private Actors

Globalisation and global governance mean that private actors are involved in public regulation and decision-making processes. Companies in particular are experiencing an increase in power that goes far beyond mere economic indicators; that is, they are also gaining political and normative power. This book examines the opportunities and challenges that result from this, which are particularly evident in the field of international human rights. Public human rights are being challenged by the political and normative power of private actors. This does not only change human rights and global governance actors, but also requires a new perspective on both the private and public spheres. This book therefore develops a perspective on the hybrid, societal roles of companies, which form a third domain situated between and simultaneously beyond the public and private spheres.

scholarly journals Compulsory Vaccination in a Fundamental Rights Perspective: Lessens from the ECtHR

ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Anja Krasser
Keyword(s):  
Human Rights ◽  
Public Opinion ◽  
Case Law ◽  
Fundamental Rights ◽  
The Public ◽  
Compulsory Vaccination ◽  
The Past ◽  
European Court ◽  
Master Thesis

Abstract The multiple COVID-19 vaccines developed over the past months are typically thought of as the only means to meet the challenges posed by the current pandemic. Still, the public opinion on vaccines is heavily divided. And, of course, discussions about compulsory vaccination, oftentimes based on fundamental rights arguments, tend to become heated. This note This note builds on the arguments developed in the author’s master thesis Anja Krasser, ‘Die grundrechtliche Zulässigkeit einer Impfpflicht in Österreich’ (Universität Graz 2019) which have previously been summarized in Anja Krasser, ‘Zur grundrechtlichen Zulässigkeit einer Impfpflicht’ (2020) 2020/206 RdM 136. analyses the issues at hand based on the case law of the European Court of Human Rights (ECtHR).

scholarly journals The Public Safety (Public Protection Orders) Bill 2012: Is post-sentence detention of sex offenders consistent with human rights?

2021 ◽  
Author(s):  
◽  
Jasmin Moran
Keyword(s):  
Human Rights ◽  
Sex Offenders ◽  
Public Safety ◽  
Attorney General ◽  
Case Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Public ◽  
Protection Orders ◽  
Rights Issues

<p>The Public Safety (Public Protection Orders) Bill 2012 was introduced by the National-led Government to address a perceived public safety problem relating to recidivist sex offenders. The Bill enables the detention of sex offenders beyond the expiration of their finite sentences, if they are seen as highly likely to reoffend. As such, the Bill raises a number of serious human rights issues. In response, the Attorney-General issued a statement contending the Bill was consistent with the New Zealand Bill of Rights Act 1990. This article analyses the correctness of that statement, with a particular focus on whether the Bill is a form of civil committal and is, in substance, different to imprisonment. Drawing on case law from the United States and Australia, where similar post-sentence detention schemes operate, this paper suggests the Bill actively engages with human rights concerns. The conclusion reached is that the Bill appropriately balances the public safety interest and the basic human rights of sex offenders.</p>

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