Editor’s
note: Nora Kenan has been an intern at the Asser Institute for the past five
months and is about to complete her LL.B. in International & European Law
at The Hague University of Applied Sciences. Upon graduating, she will proceed
with a Master’s in human rights at the University of Utrecht.
The Norwegian
Transparency Act [1](‘Åpenhetsloven’), also
known as the ‘Act on Business Transparency and Work with Fundamental Human Rights
and Decent Work’ was proposed in April 2021. Now, two months later, the Act has
officially been adopted by the Norwegian government
and represents yet another mandatory due diligence initiative which has been
trending across various jurisdiction in the recent years. The Act will require all
large and medium-size corporations in Norway to disclose the measures taken to
ensure the respect for human rights throughout their entire supply chain.
Various
Norwegian organizations have been campaigning for years in favor of such a law.
The official preparations began in 2017, when the Parliament (‘Regjeringen’)
requested the Government (‘Stortinget’) to explore the possibility of
introducing a law that would oblige companies to inform consumers about the
steps that they take to follow up on various human rights responsibilities. The
Government appointed a law firm as well as a group
of experts, the Ethics Information Committee, to
conduct thorough research on the matter, and to investigate whether there were
any other legal obligations standing in the way of a proposal of this kind,
such as for example EEA-obligations or bilateral/multilateral agreements. As a
result of this research, it was concluded that there was indeed room for
imposing human rights obligations on corporations. Shortly after, the Ethics
Information Committee published a report
in which they proposed the introduction of a due diligence legislation – more
specifically, the Transparency
Act. The Act consists of fifteen paragraphs (§)[2], and each paragraph has a
commentary which further describes how it should be interpreted and applied.[3]
The
objective of the law is essentially to promote corporate respect of human
rights and decent working conditions in the production of goods and provision
of services, as well as to ensure public access to information on the steps
taken by corporations to safeguard these goals (§1). By making this information
public, individuals and stakeholders in general are given the chance to
directly question the activities of a company. 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 and a contributor to the Doing Business Right project of the Asser Institute. 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.
The introduction
of the UK, Australian and NSW Modern Slavery Acts are part of the international
trend towards greater regulation and transparency of modern slavery in
corporate supply chains and operations. For example, Canada has recently introduced
a modern slavery bill and Brazil introduced a ‘dirty
list’ to name and shame companies that engage in slave labour back in 2004.
This last blog of a series of articles dedicated to the global modern slavery
developments focuses on the modern slavery developments in jurisdictions other
than the UK and Australia. 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 and a contributor to the Doing Business Right project of the Asser Institute. 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.
Over the past
couple of years, there has been an international trend towards greater
regulation and transparency with respect to modern slavery in corporate supply
chains as reports of gross human rights violations in corporate supply chains
have entered the public spotlight. For example, over the past couple of years
there has been extensive
media attention in relation to the use of slaves trafficked from Cambodia,
Laos, Bangladesh and Myanmar to work on Thai fishing boats to catch fish to be
sold around the globe, with the boats considered to be ‘floating labor camps’. As
a result of events such as this, there has been increased pressure on
businesses to take steps to address modern slavery in their supply chains
through processes such as through conducting risk assessments and due
diligence.
As the Ethical Trading Initiative notes, key risks facing companies in their
supply chains include the use of migrant workers; the use of child labour;
recruitment fees and debt bondage; the use of agency workers and temporary
labour; working hours and wages; and the use of subcontractors. In 2016 the Global Slavery Index reported that 40.3 million people are living in
modern slavery across 167 countries, and in 2014 the ILO estimated that forced labour in the private economy generates
US$150 billion in illegal profits per year.
In March 2015,
the UK Government passed the UK Modern
Slavery Act 2015 (the Act), game-changing legislation that targets, inter
alia, slavery and trafficking in corporate supply chains. The UK Government
also published guidance explaining how businesses should comply with the
Act.
This first blog
of a series of articles dedicated to the global modern slavery developments
provides an overview of the main elements of the Act and how businesses have
responded to it. It will be followed by a review of the proposed Australian
MSA, and a final piece on the developments in other jurisdictions that are considering
introducing legislation regulating modern slavery in the corporate context. More...
Editor’s note: Abdurrahman is currently working for Doing Business
Right project at the Asser Institute as an intern. He received his LL.M.
International and European Law from Tilburg University and currently he is
a Research Master student at the same university.
- Introduction
The
2011 update of the OECD Guidelines
for Multinational Enterprises (hereinafter
‘Guidelines’-for some introductory information, see here) introduced
various changes to the 2000 text of the Guidelines, including a whole new
chapter on human rights in line with the UN
Guiding Principles on Business and Human Rights.
National Contact Points (NCPs) - non-binding, state-based, non-judicial
grievance mechanisms established by the adhering states - have since then
concluded approximately
60 cases submitted under the newly-introduced human rights
chapter.
If an
NCP believes that the issues raised in a submission merit further
consideration, it accepts the complaint, prepares an initial assessment report
and offers its good offices to the parties of the complaint.[1] Parties may reject the
offer, accept the offer but fail to reach an agreement in the mediation or, if
everything goes well, reach an agreement. In any of these scenarios, the NCP
concludes the specific instance with a final assessment report.[2] Between the initial and
final assessment reports, however, NCPs are not required to communicate details
of the ongoing mediations to the public. Nor do they have to provide any
specific details about the agreement of the parties, if at all, along with or
after the final report.[3]
NCPs aim
to promote the effectiveness of the Guidelines, to handle enquiries and to use a
complaint procedure (so-called specific instance procedure) to facilitate
settlements of disputes that may arise in case of non-compliance with the
Guidelines by enterprises. Although to provide effective remedies to victims of
business-related human rights abuses is not explicitly included among their
aims, NCPs have the potential to serve as a forum to which victims can turn to
obtain effective remedies.[4] They can receive
complaints alleging the violation of internationally recognized human rights
and offer mediation to the parties of the complaint to find a solution on which
both parties agree upon.
In
more than 20 out of these approximately 60 cases concluded, parties to the
dispute reached a settlement through a mediation procedure facilitated by the
NCP. These cases are considered ‘successful’ or ‘positive’ by the OECD.[5] But can these really be
considered as such?
Do the NCPs function as an effective grievance mechanism which provides
access to remedies to victims of business-related human rights abuses in the
cases they have settled? Or were these cases found successful only because the
NCPs dealing with them claim so, regardless of the actual remedies provided? In
this blog, I will elaborate on the concept of ‘success’ as used by the OECD and
how the cloudy nature of the procedure raises questions about the successful
conclusion of the cases and of the role of NCPs in this regard.More...
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.
Background
At the United Nations
Forum on Business and Human Rights from 27-29 November 2017 in
Geneva, discussions focused on the central theme of Realizing Access
to Effective Remedy. With an increasing focus on this third pillar
of the United Nations
Guiding Principles on Business and Human Rights, a working group of
international law, human rights and conflict management specialists (Claes Cronstedt, Jan Eijsbouts,
Adrienne Margolis, Steven Ratner,
Martijn
Scheltema and Robert C.
Thompson) has spent several years exploring the use of arbitration
to resolve business and human rights disputes. This culminated in the
publication on 13 February 2017 of a proposal for International Business and Human
Rights Arbitration. On 17 August 2017, a follow-up Questions and Answers
document was published by the working group to address the principal questions
raised about the proposal during the three-year consultation with stakeholders.
Now, a drafting team
is being assembled, chaired by Bruno Simma,
to prepare a set of rules designed specifically for international business and
human rights arbitration (the
Hague International Business and Human Rights Arbitration
Rules) in consultation with a wide range of business and human
rights stakeholders. Once
drafted, the rules will be offered to the Permanent Court
of Arbitration and
other international arbitration institutions and could be used in arbitration
proceedings managed by parties on an ad
hoc basis.
Introduction
Part 1
of this three-part blog series gave an overview introduction to the proposal
for international business and human rights arbitration. This Part 2 focuses on
(1) the potential advantages of
using international arbitration to resolve such disputes, as well as (2) the substantial challenges the
proposal will face in practice. Part 3 will then provide a case study of the
Accord on Fire and Building Safety in Bangladesh’s binding arbitration process. More...
Editor’s note: Constance Kwant is an experienced international lawyer who has worked as in-house senior legal counsel for a top tier international financial institution in both Hong Kong and the Netherlands. She has a specific interest in sustainable business and human rights, including responsible finance.
Introduction
This post aims to outline, briefly analyse and to provide a critical comment in relation to striking a balance between confidentiality and transparency in the procedure followed by the Dutch National Contact Point (‘NCP’) in the Specific instance procedure filed in December 2015 by three former employees (‘Representatives’) on behalf of a group of 168 former employees of Heineken’s subsidiary Bralima SA (‘Bralima’) in Bakavu, located in the eastern part of the Democratic Republic of Congo (‘DRC’).
The case, finalised in August 2017, concerns alleged violations of labour and human rights by Bralima in the period 1999-2003, a period during which the DRC was a highly volatile and conflict-affected country, where the eastern part of the DRC was effectively under control of rebel movement DRC-Goma.The complaint also alleged that Bralima had cooperated with DRC-Goma in a number of ways throughout this period. On the basis of the alleged violations, the Representatives sought financial compensation by filing its notification with the NCP.
Since the allegations were brought forward to the NCP under the OECD Guidelines for Multinational Enterprises, this post will first provide short background information on the OECD Guidelines and the workings of the Dutch NCP, subsequently moving through the proceedings, its outcome, and a brief analysis with a critical note. More...