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.

Breakthrough in Parent Company Liability

Two English and two Dutch cases have recently clarified the (potential) liability of parent companies vis-à-vis third parties in relation to damage caused by their subsidiaries. They concern the decisions of the UK Supreme Court in Vedanta v Lungowe and Okpabi v Shell, the Hague Court of Appeal in Oguru v Shell and the Hague District Court in Milieudefensie v Shell (climate change case).

Problems and prospects of e-commerce regulation in the EAEU

The rapid growth of online trade leads to a number of problems faced by EAEU member states in the implementation of customs regulation of electronic commerce: reducing the tax base by reducing traditional trade; sending profit fl ows to those countries where the parent companies of online trading platforms are registered; imperfect competition of goods imported duty-free compared to goods produced within the EAEU; the emergence of new security threats due to the actual lack of certification and other restrictions, which actualizes a thorough study of this phenomenon and its timely regulation. The article outlines topical issues of regulating the movement of goods of cross-border electronic trade across the customs border of the EAEU, which make it necessary to amend the Agreement on the Customs Code of the EAEU on cross-border electronic commerce, that is, the content of the draft Protocol on Amendments, according to which "goods for electronic commerce" is understood as goods, acquired by individuals in the framework of foreign electronic commerce, under which, in turn, it is meant to conclude a transaction, one of the parties to which is a foreign economic operator, on electronic trading platforms through the Internet. An analysis of these changes is presented, in particular, the prospect of creating a new legal institution and type of activity in the field of customs regulation — an e-commerce operator, which will provide logistics of operations, as well as ensure interaction with Internet sites and customs, ensuring customs declaration processes. The main requirements for the operator of electronic commerce, the specifics of temporary storage, customs declaration and issuance of electronic commerce goods, the specifics of the application of the customs procedure of the customs warehouse, as well as the procedure for applying customs payments and the prospects for regulating electronic commerce in the EAEU have been determined.

Human Rights Litigation against Multinationals in Practice

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.

Human Rights Litigation against Multinational Companies in France

Sandra Cossart and Lucie Chatelain review strategic human rights and environmental cases against multinationals in France. By reference to actual cases they outline the legal bases, jurisdiction, and procedure for corporate criminal liability for offences overseas. They discuss cases arising from consumer complaints for misrepresentations by multinationals about human rights standards in supply chains. Regarding tort law, they explain the corporate veil and other hurdles and the potential for claims against parent companies and attempts made to utilise French labour law by employees of foreign subsidiaries. They explain the ground-breaking Law on the Duty of Vigilance of parent and instructing companies, the potential for civil liability in the event of failure to comply with the requirements for a vigilance plan, and judicial enforcement mechanisms. They outline procedural barriers to claims against multinationals, including with regard to access to evidence, collective actions, legal standing of NGOs, and costs rules.

Perspectives on the Development and Significance of Tort Litigation against Multinational Parent Companies

Richard Meeran explains the genesis of tort-based multinational human rights litigation in the United Kingdom, including some striking features, events, and judgments in original cases of Connelly v. Rio Tinto, Ngcobo v. Thor Chemical, and Lubbe v. Cape plc cases and their impact on the development of English law relating parent company liability leading to the precedents in the Chandler v. Cape, Vedanta, and Okpabi v. Shell cases. He offers insights on strategic litigation from these and other multinational cases. He outlines the key legal, procedural, and practical barriers to justice for victims, with particular emphasis on forum non conveniens, funding litigation, and the interrelationship of the barriers in deterring victims’ lawyers. He considers the concurrent development and integration of multinational human rights litigation and business and human rights including in the UN Guiding Principles. He outlines the potential for cross-border collaboration between lawyers to pursue cases in multinational host States.

Group Companies and Climate Justice

A string of corporate litigation cases in the United Kingdom highlights the role of corporate group structures in complicating efforts to impose liability on parent companies for the activities of their subsidiaries, particularly where those subsidiaries are located in the Global South. Corporate group structures serve to insulate parent companies against liability for actions of their subsidiaries. This is the case even where economic benefits accrue to parent companies, which are often incorporated in the Global North. These group structures cabin liability for environmental and climate harms within subsidiary companies through reliance on company law principles such as limited liability and separate legal personality. These company law principles allow parent companies to enjoy corporate profits from the activities of their subsidiaries but disavow liability for any environmental damage resulting from such activities. This dichotomy has obvious equity implications, which are exacerbated in the extractive industries and in the context of climate change. Negative climate impacts are and will be felt predominantly in the Global South. In addition, environmental damage removes avenues of climate adaptation for vulnerable populations. But company law principles are not impervious to these equity challenges. These principles have never been absolute and courts have consistently found exceptions to them, although those exceptions have fluctuated in effectiveness and frequency over the years. Recent decisions by the Court of Appeal and Supreme Court in the United Kingdom imposed duties on parent companies for environmental damage caused by their subsidiaries. Cases following the decision in Chandler v Cape Industries illustrate tension between company law as interpreted in the Global North, and climate and environmental justice as experienced in the Global South. Climate change forces a reconceptualization of company law, including transnational corporate liability. This paper argues that these reconsiderations are not only appropriate, but given the contested histories of many of these companies in the Global South, long overdue.

3. Corporate personality

This chapter discusses the concept of corporate legal personality. This fundamental principle of company law—that the company on incorporation becomes a separate legal entity in its own right—was established by the House of Lords in Salomon v Salomon & Co Ltd. The Salomon principle and its consequences for individual companies and for groups of companies are considered. In limited circumstances, the court may disregard or pierce or lift the corporate veil and the narrow jurisdiction to do so is explained. The chapter also considers corporate groups in the light of Salomon, particularly with regard to the liability of parent companies for the actions of subsidiary companies.

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

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.

Forging a collective entrepreneurial identity within existing organizations through corporate venturing

PurposeThis study unpacks how organizational members construct a collective entrepreneurial identity within an organization and attempt to instill entrepreneurial features in the organization's existing identity.Design/methodology/approachThe study draws on the cases of two venturing units, perceived as entrepreneurial groups within their respective parent companies. Semi-structured interviews and secondary data were collected and analyzed inductively and abductively.FindingsThe data revealed that organizational members co-constructed a “corporate entrepreneur” role identity to form a collective shared belief and communities of practice around what it meant to act as an entrepreneurial group within their local corporate context and how it differentiated them from others. Members also clustered around the emergent collective entrepreneurial identity through sensegiving efforts to instill entrepreneurial features in the organization's identity, despite the tensions this caused.Originality/valuePrevious studies in corporate entrepreneurship have theorized on the top-down dynamics instilling entrepreneurial features in an organization's identity, but have neglected the role of bottom-up dynamics. This study reveals two bottom-up dynamics that involve organizational members' agentic role in co-constructing and clustering around a collective entrepreneurial identity. This study contributes to the middle-management literature, uncovering champions' identity work in constructing a “corporate entrepreneur” role identity, with implications for followers' engagement in constructing a collective entrepreneurial identity. This study also contributes to the organizational identity literature, showing how tensions around the entrepreneurial group's distinctiveness may hinder the process of instilling entrepreneurial features in an organization's identity.