Doing Business Right – Monthly Report – November 2017 - By Catherine Dunmore

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.

The Headlines

Amnesty International reports Shell’s 1990s involvement in Nigerian human rights violations

Amnesty International has released a report examining the role that the British-Dutch multinational oil and gas company Shell played in human rights violations and crimes committed by Nigerian security forces in Ogoniland in the 1990s. As the Movement for the Survival of the Ogoni People protested against Shell’s negative environmental and social impact on the Ogoni community, Nigeria’s security forces responded with a series of violent attacks leading to an estimated 1,000 deaths, destruction of ten villages and displacement of 30,000 people. In preparing A Criminal Enterprise? Shell’s Involvement in Human Rights Violations in Nigeria in the 1990s, Amnesty International reviewed thousands of pages of internal company documents and witness statements. It concluded that “Shell repeatedly encouraged the Nigerian military to deal with community protests, even when it knew the horrors this would lead to – unlawful killings, rape, torture, the burning of villages” and even provided money and logistical assistance to the security forces. Amnesty International calls upon the governments of Nigeria, The Netherlands and the United Kingdom to investigate, with a view to prosecution, Shell and/or individuals who were formerly in decision-making or supervisory positions within the company. Shell has always denied that the company played any part in violence or human rights violations in Ogoniland, affirming that “the evidence will show clearly that Shell was not responsible for these tragic events”.

Araya v Nevsun: Court of Appeal rejects Nevsun’s attempt to dismiss Eritrean refugee case

On 21 November 2017, the Court of Appeal for British Columbia handed down its judgment in Araya v Nevsun Resources Ltd., 2017 BCCA 401. The plaintiffs are Eritrean refugees who claim they were forced to work in a gold mine owned indirectly by Canadian mining company Nevsun and Eritrean state companies. The representative action is based on allegations that “international law norms against forced labour, slavery and torture were violated during the construction of the mine”, with over 1,000 people allegedly conscripted into the military under the Eritrean National Service Program and forcibly deployed at the mine in inhuman conditions, under constant threat of physical punishment, torture and imprisonment. Nevsun applied to have an earlier Supreme Court of British Columbia decision overturned and to have the action stayed using several grounds, including arguing under the Court Jurisdiction and Proceedings Transfer Act that the forum conveniens would be an Eritrean court or tribunal. Nevsun further argued for dismissal using the doctrine of act of state, and claimed there is no right in Canada to a civil remedy for acts of torture committed abroad, despite Canada being party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Court of Appeal dismissed the appeal, stating that “international law is ‘in flux’ and that transnational law, which regulates ‘actions or events that transcend national frontiers’ is developing, especially in connection with human rights violations that are not effectively addressed by traditional ‘international mechanisms’”. It affirmed that other “jurisdictions have been willing to hold corporate actors accountable for violations of jus cogens; and over time, the doctrine of act of state has been limited by public policy considerations said to be part of domestic law”.

Yaiguaje v Chevron: Court of Appeal denies Chevron’s attempt to block Ecuador enforcement

On 31 October 2017, the Court of Appeal for Ontario issued its decision in Yaiguaje v Chevron Corporation, 2017 ONCA 827. In 2011, oil giant Chevron was ordered by an Ecuadorian court to pay $18 billion (later reduced to $9.5 billion) to 30,000 Indigenous villagers living in the Lago Agrio region of Ecuador for environmental damages resulting from crude oil production in a claim dating back to 1993. When Chevron refused to pay, the Indigenous Ecuadorians brought proceedings in several jurisdictions where Chevron has assets, including Canada. Chevron disputes the original Ecuadorian judgment and its enforceability in Canada, and further requested that the plaintiffs pay $942,951 as security for costs of the proceedings. However, the Court of Appeal stated that “Chevron Corporation and Chevron Canada have annual gross revenues in the billions of dollars. It is difficult to believe that either of these two corporations, which form part of a global conglomerate with approximately 1,500 subsidiaries, require protection for cost awards that amount or could amount to a miniscule fraction of their annual revenues”. Accordingly, it dismissed Chevron’s claim, finding it “difficult to accept that the motion for security for costs was anything more than a measure intended to bring an end to the litigation”.

Company Reports and Press Releases

●           FIFA - FIFA publishes guide to bidding process for the 2026 FIFA World Cup

Government Consultations, Reports and Guidance

●           Accord - Quarterly Aggregate Report

●           Canadian National Contact Point - Final Statement: Endeavour Mining Corporation and a Labour Union

●           European Commission - Public consultation on institutional investors and asset managers' duties regarding sustainability

●           Government of Ireland - National Plan on Business and Human Rights 2017 - 2020

●           Ministry of Economic Affairs and Employment of Finland - Guide to socially responsible public procurement

●     Nationaal Contactpunt OESO-richtlijnen - Publicatie Eerste evaluatie melding Oxfam Novib, Greenpeace, BankTrack en Milieudefensie vs. ING

●           UK Parliament - Committees publish Bill to end exploitation in the gig economy

NGO and Law Firm Reports, Papers and Investigations

●           Allen & Overy LLP’s Human Rights Working Group - The Business and Human Rights Review

●           Amnesty International - A Criminal Enterprise? Shell’s Involvement in Human Rights Violations in Nigeria in the 1990s

●           Amnesty International - Time to Recharge Corporate Action and Inaction to Tackle Abuses in the Cobalt Supply Chain

●           Business & Human Rights Resource Centre - What’s changed for Syrian refugees in Turkish garment supply chains?

●           Institute for Human Rights and Business - Responsible Recruitment: Remediating Worker-Paid Recruitment Fees

●           Principles for Responsible Investment - An Investor Briefing on the Apparel Industry: Moving the Needle on Responsible Labour Practices

●           Swedwatch - Swedfund, FMO failed to respect human rights when exiting bioenergy project

●           UNEP Inquiry and World Bank Group - Roadmap for a Sustainable Financial System

In court

●           Agence France-Presse - Peruvian farmer sues German energy giant for contributing to climate change

●           Araya v Nevsun Resources Ltd - Judgment

●           Dutch NGOs v ING Bank - Case overview

●           FIDH - Sale of surveillance technology to Egypt: Paris Prosecutor asked to open a criminal investigation

●           Human Rights Law Centre and Raid vs G4S - Case overview

●       Independent Workers' Union of Great Britain and RooFoods Limited T/A Deliveroo - Decision on Whether to Accept the Application

●           Kathleen Harris - Supreme Court ruling removes barrier for year-round ski resort on sacred First Nation land

●           Kristine Hirsti - Klimasøksmålet: Vinner miljøbevegelsen kan bremsen for oljeleting i nord settes på

●           Leigh Day - Court of Appeal to hear Nigerian villagers’ pollution claims against Shell

●           teleSUR - A victory for Ecuador’s Indigenous Peoples: Canada Court rejects toxic-spilling Chevron’s case

●           Uber v Aslam et al - Judgment

In the news

Environment

●           Kate Hodal - 'Absolutely shocking': Niger Delta oil spills linked with infant deaths

●           Scilla Alecci - Paradise Papers: Leaked records reveal offshore companies’ role in forest destruction

Equator Principles

●           BankTrack - 'Equator banks, act!' campaign welcomes decision to revise the Equator Principles

●           EP Association Annual Meeting 2017 - Outcomes

Labour

●           Amnesty International - Industry giants fail to tackle child labour allegations in cobalt battery supply chains

●           Bénédicte Jeannerod - The Louvre Abu Dhabi’s Unlovely Back Story

●      Elizabeth Segran - The Real Story Behind Those Desperate Notes That Zara Workers Left In Clothes

●           Sarah Butler - University support staff launch landmark case over pay and conditions

Mining and Minerals

●           Adam Davidson - How Trump Is Quietly Dismantling the Architecture of Global Governance

●           Ben Doherty and Oliver Zihlmann - The inside story of Glencore's hidden dealings in DRC

●           EITI - EITI Chair Statement on United States withdrawal from the EITI

●           EITI - Mexico embraces oil, gas and mining transparency

●           Hannah Summers - Amnesty seeks criminal inquiry into Shell over alleged complicity in murder and torture in Nigeria

Money laundering

●           Vanessa Houlder - UK shell companies linked to £80bn money laundering

Sport

●           Amnesty International - FIFA under pressure over handling of World Cup construction abuse

●           Institute for Human Rights and Business - Consultation on Grievance Mechanism for Tokyo 2020 Olympic Games

●           Jane Buchanan - Russian Human Rights Defender Faces Police in Court

●           Minky Worden - Time for FIFA to Act on Human Rights: Russia’s World Cup 2018 Preparations Falling Short of Rights Goal

Swiss Responsible Business Initiative

●           Initiative pour des multinationales responsables - La Commission reconnaît la nécessité d’agir et veut un contre-projet indirect

●           Marc-André Miserez - Paradise Papers fuel Swiss better business initiative - for now

●           Michael Soukup - Exklusive Umfrage: Deutliche Mehrheit für Konzern-Initiative

Taxation

●           Nick Hopkins and Simon Bowers - Revealed: how Nike stays one step ahead of the taxman

●           United Nations Human Rights - Paradise Papers: States must act against “abusive” tax conduct of corporations - UN human rights experts

Trade

●           Rob Howse - The "Ardern Clause" in TPP: A Novel Approach to Curbing Investment-State Dispute Settlement

United Nations

●           ECCJ - UN treaty process on business and human rights moving into a new phase

●           United Nations General Assembly - Situation of human rights defenders

Speeches, Videos and Interviews

●           Institute for Human Rights and Business - Heads of OHCHR, ILO, and IOC open the Sporting Chance Forum

Academic Materials

●       Anna Grear and Burns Weston - The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel Lawscape

●           Business and Human Rights Journal - Surya Deva, Anita Ramasastry, Michael Santoro and Florian Wettstein

●           Christine Overdevest and Jonathan Zeitlin - Experimentalism in transnational forest governance: Implementing European Union Forest Law Enforcement, Governance and Trade (FLEGT) Voluntary Partnership Agreements in Indonesia and Ghana

●           Jonathan Bonnitcha and Robert McCorquodale - The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights

●           Jonathan Bonnitcha and Robert McCorquodale - The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Rejoinder to John Gerard Ruggie and John F. Sherman, III

●           John Ruggie and John Sherman - The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale

●      Karin Buhmann - Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action

●           Louise Obara - ‘What Does This Mean?’: How UK Companies Make Sense of Human Rights

●           Lukasz Czerwinski - A Jedi Approach for Companies to Manage Grievances and Land-Related Risk

●           Milan Babic, Jan Fichtner and Eelke Heemskerk - States versus Corporations: Rethinking the Power of Business in International Politics

●           Nicolas Bueno - Corporate Liability for Violations of the Right to Just Conditions of Work in Extraterritorial Operations

●           Shane Darcy - ‘The Elephant in the Room’: Corporate Tax Avoidance & Business and Human Rights

●        Stéphane Brabant and Elsa Savourey - France’s Corporate Duty of Vigilance Law: A Closer Look at the Penalties Faced by Companies

●          NYU Stern BHR - Harmful Content: The Role of Internet Platform Companies in Fighting Terrorist Incitement and Politically Motivated Disinformation

Blogs

Asser Institute Doing Business Right Blog

●           Catherine Dunmore - Doing Business Right – Monthly Report – October 2017

●        Catherine Dunmore - Lungowe v Vedanta and the loi relative au devoir de vigilance: Reassessing parent company liability for human rights violations

●           Daniel Iglesias Márquez - The EU Conflict Minerals Regulation: Challenges for Achieving Mineral Supply Chain Due Diligence

●           Elisa Chiaro - Regulating the Gig Economy: A Workers’ Rights Perspective

●           2 November 2017 - “Give banks and companies clear guidelines on their human rights responsibilities”

Others

●           Atul Shah - KPMG: Professional Chameleons Or Independent Public Auditors And Regulators?

●           Beate Sjåfjell - Doing By Suing: The International Trend of Climate Lawsuits

●           Christopher Burkett and Kevin Coon - Door Still Open? Canada As Safe Harbour For Multinational Human Rights Litigation

●        Claes Cronstedt, Jan Eijsbouts, Adrienne Margolis, Steven Ratner, Martijn Scheltema, Robert Thompson - International Arbitration of Business and Human Rights: A Step Forward

●           Daniel Aguirre - Obligations to respect and protect human rights are meaningless without access to remedy in states where the rule of law is weak: The example of Myanmar

●           Gabriela Quijano and Elodie Aba - Reclaiming the forgotten pillar, and the law as an agent of change

●        Global Witness - Chinese industry group launches guidelines for sustainable rubber - includes sections on land, labour & indigenous peoples rights

●         Larry Catá Backer - Reflections Day 1 ("What is the continuing relevance of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

●           Roel Nieuwenkamp - “I don’t care if it’s legal, it’s wrong”: Panama Papers show taxation is a core corporate responsibility issue

●           Roper Cleland - Do local grievance mechanisms work?

●           Ryan Brightwell - Steps forward and steps back on the road to access to remedy in the banking sector

●           Surya Deva - Access to Effective Remedy: Taking Human Rights and Rights Holders Seriously

Upcoming Events

Asser Institute

●           8-12 January 2018 - Winter Academy - Doing Business Right: Corporate social responsibility in transnational law and practice, Den Haag, Netherlands

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