Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of
the Advanced Masters of European and International Human Rights Law at Leiden
University in the Netherlands. Prior to commencing the LLM, she worked as a
business and human rights solicitor in Australia where she specialised in
promoting business respect for human rights through engagement with policy, law
and practice.
Introduction
This report compiles all relevant news,
events and materials on Doing Business Right based on the coverage provided on
our twitter feed @DoinBizRight and on various websites. You are invited to
contribute to this compilation via the comments section below, feel free to add
links to important cases, documents and articles we may have overlooked.
The
Headlines
Chevron
Corporation and Texaco Petroleum Company v The Republic of Ecuador
On 30 August 2018 an international tribunal
administered by the Permanent Court of Arbitration in The Hague issued an award
in favour of Chevron Corporation and Texaco Petroleum Company, holding that the
Republic of Ecuador had violated its obligations under international treaties,
investment agreements and international law. The tribunal found that a $9.5
billion judgment handed down by Ecuador’s Supreme Court in the Lago Agrio case was
procured through fraud, bribery and corruption. It also found that the Republic
of Ecuador had already released the claims that formed the basis of the
judgment years before. The tribunal concluded that the fraudulent Ecuadorian
judgment is “not final, enforceable, or conclusive under Ecuadorian and
international law” and therefore cannot be enforced within or outside of
Ecuador and that it “violates international public policy and natural justice”.
Draft
Optional Protocol to Business and Human Rights Treaty
On 4 September 2018 the Permanent Mission
of Ecuador to the UN and other International Organizations in Geneva presented
the ‘Draft
Optional Protocol To The Legally Binding Instrument To Regulate, In International
Human Rights Law, The Activities Of Transnational Corporations And Other
Business Enterprises’ (Optional Protocol). The Optional Protocol focuses on
ensuring State Parties to the Optional Protocol establish mechanisms that
provide access to remedy for victims of human rights violations in the context
of business activities of a transnational character. It also provides
individuals and group with the ability to make communications to the Committee
of experts. More...
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of
European and International Human Rights Law at Leiden University in the
Netherlands. Prior to commencing the LLM, she worked as a business and human
rights solicitor in Australia where she specialised in promoting business
respect for human rights through engagement with policy, law and practice.
Since the release of the first draft of the
BHR Treaty (from herein referred to as the ‘treaty’), a range of views have
been exchanged by commentators in the field in relation to the content of the
treaty (a number of them are available on a dedicated page
of the Business and Human Rights Resource Centre’s website). While many have
stated that the treaty is a step in the right direction to imposing liability
on businesses for human rights violations, there are a number of critiques of
the first draft, which commentators hope will be rectified in the next version.
This second blog of a series of articles
dedicated to the proposed BHR Treaty provides a review of the key critiques of
the treaty. It will be followed by a final blog outlining some recommendations
for the working group’s upcoming negotiations between 15 to 19 October 2018 in
Geneva. More...
Editor’s note: Shamistha Selvaratnam is a
LLM Candidate of the Advanced Masters of European and International Human
Rights Law at Leiden University in the Netherlands. Prior to commencing the
LLM, she worked as a business and human rights solicitor in Australia where she
specialised in promoting
business respect for human rights through engagement with policy, law and
practice.
By resolution,
on 26 June 2014 the UN Human Rights Council adopted Ecuador’s proposal to
establish an inter-governmental working group mandated ‘to elaborate an
international legally binding instrument to regulate, in international human
rights law, the activities of transnational corporations and other business
enterprises’. The proposal was adopted by 20 to 14 votes, with 13 abstentions,
and four years later, in July this year, the working group published the first
draft of the treaty (from herein referred to as the ‘treaty’). Shortly after, the draft
Optional Protocol to the draft treaty was released. The Optional Protocol
focuses on access to remedy for victims of human rights abuses by businesses.
This first blog of a series of articles
dedicated to the proposed BHR Treaty provides an overview of the main elements
of the draft. It will be followed by a review of the reactions to the Draft,
and a final piece outlining some recommendations for the upcoming negotiations. More...
Editor’s
note: Benjamin
Thompson is a PhD candidate in business and human rights at Tilburg Law School
in the Netherlands. His PhD research deals with the effects of the UN Guiding
Principles on Business and Human Rights' endorsement of operational level,
non-judicial grievance mechanisms and their role in improving access to remedy.
He recently published an article for Utrecht Law Review’s
Special Issue on Accountability of Multinational Corporations for Human
Rights Abuses which discussed the roles the new Dutch multistakeholder
initiative with the Dutch banking sector might play in improving banks’
performance with respect to human rights.
In
November of last year the Asser Institute offered me the opportunity to take
part in a roundtable
on the Dutch
Banking Sector Agreement (DBA), as part of their
Doing
Business Right Project. Signed in December 2017, the
DBA is a collaboration between the banking sector, the government, trade unions
and civil society organisations (CSOs), all based within the Netherlands: the
first of its kind. It focuses on banks’ responsibility to respect human rights,
as stipulated in the UN
Guiding Principles on Business and Human Rights
(UNGPs) and OECD Guidelines for
Multinational Enterprises (OECD Guidelines),
within their corporate lending and project finance activities. The DBA has been
something of a hot topic in business and human rights circles. However, it has
not yet published a public monitoring report, making any evaluation of its
performance at this stage difficult. During the roundtable, we discussed the
role of the DBA as a potential means
to improve the practices of Dutch banks with respect to human rights. A key
challenge identified from this discussion, as reported here,
was the various ‘interpretive ambiguities inherent in the UNGPs’. A key
conclusion was that ‘further dialogue is required... to ascertain what conduct
on the part of the banks is consistent with international obligations’.
This
is not a unique conclusion to arise from multistakeholder discussions on banks
and human rights; the discussion often focuses on what financial institutions
are required to do to meet their responsibility to respect human rights under
the UNGPs. So much so that questions concerning implementation or evaluation
are often left by the wayside. As a result, when presenting my research on the
DBA for the Utrecht Centre of Accountability and Liability Law’s Conference on
‘Accountability
and International Business Operations’,
published here,
I decided to focus on how the DBA had responded to those key points of friction
where there is the greatest disagreement between how different stakeholders
conceive banks’ human rights responsibilities. This blog post seeks to build on
this previous entry, hopefully without too much repetition. More...
We are looking for a new business and human rights intern starting early September 2018 for a period of at least three months, preferably full-time. The Internship will be based at the Asser Institute in The Hague.
Main tasks:
- Contribute and develop research outputs within the Asser research project ‘Doing Business Right’, especially for the blog;
- Assistance in day-to-day maintenance of social media accounts linked to the ‘Doing Business Right’ project;
- Assistance in organizing upcoming events (workshops, lectures);
- Assist in legal research and analysis in the frame of academic publications.
Interested candidates should have:
- Demonstrated interest in legal issues lying at the intersection of
transnational business, human rights, private international law, and
global value chains regulation. An interest in transnational law and
private regulations are an advantage;
- Solid academic and non-academic writing skills, research and analytical skills;
- A master degree in EU law, private or public international law or international relations;
- Excellent command of written and spoken English, preferably at a native speaker level;
- Experience with managing websites and social media communication is of an advantage.
What we offer:
- A stipend, based on the level of education completed;
- Exposure to the academic activities of the research strand
‘Advancing public interests in international and European law’, and the
T.M.C Asser Instituut, a leading research centre in International and
European law;
- An inspiring, dynamic and multicultural working environment.
Interested candidates should apply by email, sending
a motivation letter and CV in English, a sample of academic writing
(master’s thesis or paper from a course relevant to the topics of the
research project ‘Doing Business Right’) to both A.Duval@asser.nl and E.Partiti@asser.nl.
Deadline for application is 10 August 2018, 12.00 PM CET.
Please note: We cannot offer assistance in obtaining residence and work permits for the duration of the internship.
Introduction
This report compiles all relevant news,
events and materials on Doing Business Right based on the coverage provided on
our twitter feed @DoinBizRight and on various websites. You are invited to contribute
to this compilation via the comments section below, feel free to add links to
important cases, documents and articles we might have overlooked.
Highlights
OECD
Due Diligence Guidance released
On 31 May, the OECD published “OECD
Due Diligence Guidance for Responsible Business Conduct”. Issued after a
multi-stakeholder process with OECD and non-OECD countries and representatives
from business, trade unions and civil society, the guidance provides practical
knowledge to businesses on due diligence recommendations and related provisions
of the Guidelines for Multinational Enterprises. The guidance also aims at
aligning different approaches of governments and stakeholders to due diligence
for responsible business conduct by promoting a common understanding.More...
Two members of the Doing Business Right team, Antoine Duval and Catherine Dunmore have just published a policy brief feeding into the current debates on the use (and usefulness) of arbitration in the business and human rights context. More precisely, the brief makes the case for the creation of a single Court of Arbitration for Business and Human Rights.
Here is the abstract:
This policy brief makes the case for a single Court of Arbitration for Business and Human Rights (CABHR). It first highlights the challenges faced by victims of human rights violations caused or directly linked to the activities of transnational corporations (TNCs) in accessing effective remedy. It then discusses the opportunities and challenges in using arbitration to provide a remedy in the business and human rights context. If arbitration is to be used, we argue that it should be in the framework of a single CABHR, which could draw some inspiration from the structure and operation of the Court of Arbitration for Sport (CAS). The policy brief concludes by highlighting four core issues which stakeholders should focus on in the process of setting up a CABHR.
You can download the paper for free on SSRN.
Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.
Introduction
This report compiles all relevant news, events and materials on Doing Business Right based on the daily coverage provided on our twitter feed @DoinBizRight. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.
We are looking for a new intern! More information here.
The Headlines
Landmark High Court case against UK mining company over alleged Sierra Leone worker abuse
On 29 January 2018, a landmark six week hearing began at the High Court in London in a case brought by 142 claimants from Sierra Leone against Tonkolili Iron Ore, a subsidiary of the UK based African Minerals. The case involves allegations of worker abuse in 2010 and 2012 at the Tonkolili Iron Ore Mine in Sierra Leone, including complicity in rape, assault, false imprisonment and the police murder of a protestor complaining over pay and conditions. Human Rights Watch previously reported how the government and African Minerals forcibly relocated hundreds of families from verdant slopes to a flat, arid area, thereby removing their ability to cultivate crops and engage in income generating activities. The claimants’ lawyers, Leigh Day, stated that the case “demonstrates that those companies headquartered in the UK that operate abroad in rural and isolated environments can be held to account when their operations face serious allegations of human rights abuses”. Tonkolili Iron Ore denies responsibility for the incidents against workers and villagers and claims full responsibility lies with the Sierra Leone police. Unusually, the trial will see the judge, Mr Justice Turner, travelling to Freetown for two weeks so that evidence can be taken from witnesses in person, after some witnesses were unable to obtain visas for the United Kingdom.
West Kalimantan villagers file complaint against the Roundtable on Sustainable Palm Oil
On 23 January 2018, a complaint was filed with the Organization for Economic Cooperation and Development’s national contact point in Switzerland by an Indonesian community rights group against the Roundtable on Sustainable Palm Oil for its failure to address complaints made by residents of two West Kalimantan villages. The indigenous Dayak community in Kerunang and Entapang villages had previously filed an urgent complaint with the RSPO accusing one of its members, Malaysian palm oil giant Sime Darby, of stealing their tribal land through its subsidiary Mitra Austral Sejahtera. They allege that Mitra Austral Sejahtera breached the RSPO Principles and Criteria for the Production of Sustainable Palm Oil relating to commitment to transparency, compliance with applicable laws and regulations and responsible consideration of employees, and of individuals and communities affected by growers and mills. It is alleged that the RSPO failed to respond to the request for the return of tribal lands and accordingly failed to meet its obligations under the OECD Guidelines for Multinational Enterprises. Sime Darby has stated that the land dispute has been discussed at the RSPO's annual meetings since 2012, and that it looks “forward to the cooperation of the communities towards ensuring that the eventual return of their land is socially, environmentally and economically viable”. More...
We are looking for an intern starting1 March 2018 for a period of at least three months, preferably full-time.
Main tasks:
- Contribute and develop research outputs within the Asser research project ‘Doing Business Right’, especially for the blog;
- Assistance in day-to-day maintenance of social media accounts linked to the ‘Doing Business Right’ project;
- Assistance in organizing upcoming events (workshops, lectures);
- Assist in legal research and analysis in the frame of academic publications.
Interested candidates should have:
- Demonstrated interest in legal issues lying at the intersection of transnational business, human rights, private international law, and global value chains regulation. An interest in transnational law and private regulations are an advantage;
- Solid academic and non-academic writing skills, research and analytical skills;
- A master degree in EU law, private or public international law or international relations;
- Excellent command of written and spoken English, preferably at a native speaker level;
- Experience with managing websites and social media communication is of an advantage.
What we offer:
- A stipend, based on the level of education completed;
- Exposure to the academic activities of the research strand ‘Advancing public interests in international and European law’, and the T.M.C Asser Instituut, a leading research centre in International and European law;
- An inspiring, dynamic and multicultural working environment.
Interested candidates should apply by email, sending a motivation letter and CV in English, a sample of academic writing (master’s thesis or paper from a course relevant to the topics of the research project ‘Doing Business Right’) to directiesecretariaat@asser.nl Deadline for application is 15 February 2018, 12.00 PM CET.
Please note: We cannot offer assistance in obtaining residence and work permits for the duration of the internship.
Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.
Introduction
This report compiles all relevant news, events and materials on Doing Business Right based on the daily coverage provided on our twitter feed @DoinBizRight. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. More...