Achieving Access to Justice in a Business and Human Rights Context

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.

Conceptualizing Corporate Accountability in International Law: Models for a Business and Human Rights Treaty

This article conceptualizes corporate accountability under international law andintroduces an analytical framework translating corporate accountability into seven core elements.Using this analytical framework, it then systematically assesses four models that could be used ina future business and human rights treaty: the United Nations Guiding Principles on Business andHuman Rights model, the Universal Declaration of Human Rights model, the progressive model, andthe transformative model. It aims to contribute to the BHR treaty negotiation process by clarifyingdifferent options and possible trade-offs between them, while taking into account political realities.Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporateaccountability, which combines ambitious development of international law with realistic prospectsof state support.

Accountability through Sustainability Data Governance: Reconfiguring Reporting to Better Account for the Digital Acceleration

Accountability assessment is a highly relevant challenge for companies nowadays. The COVID-19 pandemic prompted a digital acceleration in business environments, which in turn brought more focus on sustainability practices that could help organizations better demonstrate their accountability, thus making them more resilient to the ever-changing socio-economic context. Therefore, this paper aims to evaluate how to further improve corporate accountability (on a strategic and operational level), taking advantage of the digitalization changes that companies are being forced to go through and applying them to the sustainability evaluation process, including the reporting as its final output. The first research outcome is a combined framework, based on data governance and sustainability literature models, seeking to optimize the manageability of sustainability data. The second outcome is a matrix, based on a content analysis of 20 sustainability reports, representing eight possible types of behavior that companies adopt when integrating digitalization practices into their sustainability evaluation process. The aim is to explore how the communication of digital activities could refine the diligence of the sustainability assessment process, with disclosure representing its last step. Finally, the ‘leading’ case was broken down into the general strategic components that could potentially be included in a balanced data-sustainability reporting strategy.

Dismantling obstacles impeding better governance in companies: Affirming the expansion of the interpretation of "shareholder and director" under section 163 of the 2008 Act

Impediments to corporate accountability have over the recent years manifested in diverse forms. What took place in Peel v Hamon J&C Engineering (Pty) Ltd is a case in point. The aim of this article is in two forms. First, from the commentaries and cases consulted, it is clear that the character of who must qualify in terms of the section 163 criterion is not settled. Moreover, this can be gleaned from the criticisms against Moshidi J's judgment in Peel for having extended/expanded the section 163 remedy to afford relief to shareholders and directors whom the legislature may not have contemplated to cover under the relief. The aim here is to argue in support of this expansion as promoting accountability. Secondly, it is to make some comments on the criterion that it is only a shareholder and a director who are accorded locus standi to invoke the remedy. From the discussion, the paper makes numerous commendable observations. First, the complaint raised in Peel was not an abuse of process; it was a genuine complaint/application seeking to address genuine and novel issues which often arise between the parties in company law. Second, Moshidi J's judgment demonstrates evolution/progress for its contextual approach to the section 163 remedy's interpretation. The judgment heralds/foreshadows colossal principles/practices within company law aimed at balancing stakeholder interests. Third, the judgment potently disentangles hurdles which normally impede accountability by company directors. Lastly, the paper recommends that other stakeholders be considered for relief under the remedy.

Promoting Business and Human Rights Education: Lessons from Colombia, Ukraine and Pakistan

Business and human rights (BHR) has been taught as an academic discipline and field of practice for thirty years.1 Since the first courses at business schools, law schools, and schools of public policy in North America and Western Europe, BHR curricula have proliferated worldwide. BHR course content has expanded to include new international standards, such as the UN Guiding Principles on Business and Human Rights (UNGPs); tools for corporate accountability; 2 and examples from the growing body of corporate BHR practice. BHR pedagogy has evolved to embrace multidisciplinary teaching techniques, from business case studies to legal drafting exercises and experiential role plays.3 BHR teaching is taking place in every region, from Africa and Asia to the Middle East and Latin America. Over 350 individuals teach the subject in some form at more than 200 institutions in 45 countries.4 More than 100 universities have added BHR courses to their curricula in the past decade alone. BHR is also taught outside traditional university settings in dedicated workshops and training programmes for professionals, academics and students.5

JUSTICIA DE TRANSICIÓN CORPORATIVA

Impresiona la afinidad entre los recientes escándalos corporativos y la red empresarial que sirvió de soporte al régimen autoritario en Brasil. Muchas de las corporaciones involucradas en las recientes operaciones de enforcement ocuparon posiciones centrales en la financiación del autoritarismo en Brasil y siguen a la vanguardia de estructuras estratégicas del mercado nacional. Por consiguiente, se convive con un vacío moral con relación a la ascensión de dinámicas autoritarias, difundiendo en el mercado la retórica del compromiso por la integridad siendo indiferentes del compromiso democrático. La idea de este ensayo es explorar la referencia teórica explicativa sobre lo que podría ser la Justicia de Transición Corporativa – JTC – como nueva categoría analítica en las ciencias criminales, a partir de las que se discuten las posibilidades de atribución de responsabilidad moral y jurídica por la complicidad corporativa, perfeccionando sobre las modalidades sancionatorias y alternativas de restauración y reconstrucción social postconflicto. El texto se divide en nueve tópicos: 1) las generaciones de los estudios transicionales; 2) autoritarismo y redes empresariales; 3) perspectivas histórica y comparada; 4) corporate accountability y su influencia en la concepción de la complicidad y de la responsabilidad jurídica; 5) contribución, causalidad, acciones neutrales; 6) modalidades sancionatorias; 7) obligación moral del sector privado; 8) prácticas restaurativas de configuración transicional y 9) nuevas posibilidades para la victimología corporativa. Se combinan la perspectiva histórica y comparada y convergencias entre estudios criminológicos, transicionales y de justicia restaurativa.

The development and application of a decision-useful measure of environmental best practice for the mining industry

PurposeThe failure of environmental reporting to meet the needs of stakeholders is partly due to the gap, or inconsistency, between information disclosed in corporate reports and the underlying quality of environmental management. Within the context of the mining industry, this paper present a novel approach to close this gap. By measuring and reporting the comprehensiveness of environmental management – in a manner consistent with the qualitative characteristics applied within financial reporting – this paper contends that stakeholders can, as a result, better assess the environmental risk of mining operations and hold organisations more accountable for their environmental commitments.Design/methodology/approachUsing interviews and surveys, this paper draws on the knowledge of experienced environmental practitioners to measure the otherwise intangible quality of “environmental management”. The accounting metric developed is then used to quantify the comprehensiveness of environmental management of thirty Australian-based mine sites.FindingsThe findings suggest: (1) the accounting metric presented in this paper could better inform the decisions of both internal and external stakeholders; (2) significant variation in the comprehensiveness of environmental management exists within corporate entities and across the mining industry; (3) ISO 14001 is generally an indicator – but not a guarantee – of strong environmental management and (4) ISO 14001 self-declarations are largely symbolic.Originality/valueThe accounting metric presented in this paper could better inform user decisions, enhance corporate accountability and drive continuous improvement in environmental management. It could also provide a foundation for similar customised metrics in other industries and across other areas of sustainability.