Doing Business Right Blog

Editor's note: Samuel Brobby graduated from Maastricht University's Globalisation and Law LLM specialising in Human Rights in September 2020. A special interest in HRDD carries his research through various topics such as: the intersection between AI and HRDD, the French Devoir de Vigilance or mHRDD at the EU level. Since April 2021 he has joined the Asser Institute as a research intern for the Doing Business Right project.

The recent surge in developments and debate surrounding Artificial Intelligence (AI) have been business centric, naturally so. The conversation has long been centred on the possible gains “digitally conscious” companies can recoup from their sizeable investments in the various forms this technology can take. The ink continues to flow as numerous articles are released daily; debating between the ultimate power of artificial intelligence (and topical subsets like machine learning) on the one hand, versus the comparatively more philistinish views regarding what these technologies can offer on the other. Our objective here is not to pick a side on the AI debate. Rather, we would like to explore the Business & Human Rights implications of the development of AI and, in particular its intersection with the human rights due diligence (HRDD) processes enshrined in the UN Guiding Principles on Business and Human Rights and subsequent declinations. How compatible is AI with HRDD obligations? Where does AI fit into the HRDD process? Can AI be used as a tool to further HRDD obligations? Can the HRDD process, in return, have an effect on the elaboration and progress of AI and its use in transnational business? And, to which extent will the roll out of AI be affected by HRDD obligations? These are all questions we hope to tackle in this blog.

In short, it seems two distinct shifts are occurring, rather opportunely, in close time frames. The impending mass adoption of AI in transnational business will have strong consequences for the state of Human Rights. This adoption is not only substantiated by an uptick of AI in business, but also in policy documents produced or endorsed by leading institutions such as the ILO or the OECD for instance. Inversely, we must consider that HRDD obligations elaborated by the BHR community will also have strong implications for the development and roll out of AI. These two transformations will interact increasingly as their positions are consolidated. It is these interactions that we wish to analyse in the two parts of this article. Namely, the emergence of Artificial intelligence as a tool to shape and further HRDD obligations (1) and the emergence of HRDD as a process to shape the development of AI (2). More...

I. What happened so far

It took Ministers Heil (Labour, SPD), Müller (Development, CSU) and Altmaier (Economy, CDU) 18 months to agree on a draft for the Lieferkettengesetz (Supply Chain Law) to be presented soon to the German Bundestag for legislative debates. For an overview of the different proposals put forward by the Ministries and NGOs, and political discussion surrounding them, please check my previous blogs, which you can find here and here. You can also watch the panel discussion on the Lieferkettengesetz that we organized in November 2020 with Cornelia Heydenreich (Germanwatch), Miriam Saage-Maaß (European Centre for Constitutional and Human Rights), and Christopher Patz (European Coalition for Corporate Justice).

On 15 February 2021 the government’s “final” draft was published – the so-called “Referentenentwurf”. This initial agreement was met with relief from all parties involved, as it was preceded by a long-lasting deadlock. At first, Minister for Economic Affairs, Peter Altmaier, blocked Cabinet meetings so that the government position paper (“Eckpunkteplan”) published by Ministers Heil and Müller could not be discussed. Afterwards, Altmaier again blocked a compromise proposal brought forward by Müller and Heil in Cabinet. The matter went up to the “Koalitionsausschuss”, the committee that negotiates if members of the coalition parties cannot reach an agreement. This committee failed to come to an agreement. The issue of civil liability and the scope of application were the most controversial points. Thereafter, the matter reached the “Chefetage”, Angela Merkel. She sat down with the three ministers involved and Olaf Scholz, Vice-Chancellor and Minister for Finance (SPD), and tried to mediate between the different positions. The group met twice before, eventually, an agreement was reached resulting in the Referentenentwurf of 15 February 2021. The agreement did not last for long. Peter Altmaier withdrew (again) his support for the draft just after it had been circulated.

On 28 March 2021, another “final” draft was published. Those two drafts differ in subtle but impactful aspects. This blog post was originally based on the first draft; its text has been amended to integrate the changes introduced in the second draft. The second Referentenentwurf is the one signed off by Cabinet on 3 March 2021. In this blog, I will first summarize the main points of the draft(s), and afterwards review the various critical points raised against it.More...

Editor’s note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. In September 2020 she joined the Asser Institute as a research intern for the Doing Business Right project.

My previous blog post depicted how economic asymmetry of power translates into imbalanced contractual relationships. At the moment, supply chain contracts ensure that value is extracted while precarity is outsourced. In other words, supply chains can be described as ‘global poverty chains’. In this blog post, I will present and assess four potential way to alleviate this asymmetry and to better protect the right of the poorest garment workers in the context of the Covid-19 the pandemic. More...

Editor’s note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. In September 2020 she joined the Asser Institute as a research intern for the Doing Business Right project.

The Covid-19 pandemic is straining global supply chains and exposes the inequality that underlies them. As many countries entered lockdowns, the economy was brought to a rapid halt. This caused demand for apparel goods to plummet. Global apparel brands, in turn, have begun to disengage from business relationships with their suppliers. Lead firms cancelled or even breached their contracts with suppliers (often relying on force majeure or hardship), suspended, amended or postponed orders already made. This practice had a devastating effect on suppliers.

This situation again shows that the contractual structure of global supply chains is tilted towards (often) European or North American lead firms. In this blog, I will first outline the power imbalance embedded in global supply chain contracts. Secondly, I will outline how order cancellations impact suppliers and their workers. In Part II, I will go through four approaches to mitigate the distress of suppliers and their workers and to allow the parties to reach solutions which take into account their seemingly antagonistic interests. More...

Editor's note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. Alongside her studies, she is working as student research assistant at the Institute for International and Foreign Private Law in Cologne. Since September 2020, she joined the Asser Institute as a research intern for the Doing Business Right project

On 27 November 2020, the T.M.C Asser Institute hosted an online roundtable discussion on the German Supply Chain Law (Lieferkettengesetz). The full recording of the event can be seen here:

The three panelists, Cornelia Heydenreich from Germanwatch, Miriam Saage-Maaß from the ECCHR and Christopher Patz from the ECCJ reflected on the political framework surrounding the debate, current drafts, and Germany’s role in the European discussion on binding due diligence legislation.

I. The pathway to a Lieferkettengesetz 

As Heydenreich pointed out, civil society’s role in the struggle for a Lieferkettengesetz can barely be overstated. When in 2011, the UNGPs were passed, Germany was in no rush to implement binding due diligence legislation. Instead, the German legislators waited for their European counterparts to come forward with an action plan. It was in 2013 when a new – more left-leaning – government first voiced the idea that a national action plan should be drawn up. In 2015, consultations began. The consultation process was a dialogue, the drafting process itself was not. Even though the monitoring methodology fell short of civil society’s expectations, the result of the monitoring process was shocking nonetheless: Only 13-17% of companies complied with the National Action Plan. 

It became clear that the government needed to implement binding due diligence regulation. It also became clear that the drafting process would have to begin as soon as possible for a law to be passed before the general election in September 2021. 

II. Current drafts

Saage-Maaß turned to the different proposals for a Lieferkettengesetz: The government’s position paper from the Ministry of Development and the Ministry of Labour as well as civil society’s model law. Contrary to what the government currently envisages, Saage-Maaß emphasized the need to include small or medium-sized companies that operate in high-risk areas. 

The role of private international law must not be neglected. The question turns on whether or not the whole of the Lieferkettengesetz will be an overriding mandatory provision, or merely the due diligence obligation itself. 

Civil society organizations are particularly critical of so-called “safe harbor” provisions. These safe harbor provisions allow companies to be exempted from liability if they are part of certain multi-stakeholder initiatives (MSIs). All panelists agree, however, that as of today, no MSI meets the standards set out by the OECD. In its report, the Institute for Multi-Stakeholder Initiative Integrity (MSI Integrity) comes to the same conclusion: “MSIs are not effective tools for holding corporations accountable for abuses, protecting rights holders against human rights violations, or providing survivors and victims with access to remedy.” 

For an overview of other aspects of the legislative proposals, such as the burden of proof, please see the foregoing blog series “Corporate (Ir)responsibility Made in Germany”. 

III. EU-wide discussion

In April 2020, European Commissioner for Justice, Didier Reynders, announced that the Commission commits to legislation on mandatory due diligence. Patz emphasizes the positive impact Germany’s Council Presidency, beginning July 2020, has had on the endeavor. Germany’s Council Presidency stands out because of its strong affirmative call for a supply chain law and for reforms of directors’ duties. At the beginning of December, the Council published its Conclusion on Human Rights and Decent Work in Global Supply Chains, where it calls on the European Commission to launch an EU Action Plan by 2021 (n. 45) and to table a proposal for an EU legal framework on corporate due diligence (n. 46). According to Patz, this constitutes a strong political signal. This strong call is reinforced by three Committees, the Human Rights Committee, Development Committee, and the Legal Affairs Committee, that also spoke out in favor of civil liability. 

Another strong political signal was sent by the EU Fundamental Rights Agency, which in its report “Business and Human Rights – Access to Remedy” called for significant changes pertaining to the reversal of the burden of proof, class actions and procedural mechanisms in order to facilitate access to justice for those affected. 

The work of German MEP Anna Cavazzini (Greens) should be highlighted, too. In the European Parliament she pushed for an additional enforcement mechanism in the form of trade restrictions. Products that benefitted from human rights abuses along the supply chain should not have access to the European single market. In order for the trade restrictions to be lifted, remediation ought to be paid. This initiative counters criticism from civil society that points out that due diligence laws often have the effect of targeting whole sectors of one particular economy. Adopting additional trade restrictions allows for a much more targeted approach. 

In her report on an anti-deforestation legal framework, Delara Burkhardt(S&D) also advocated for civil liability. Companies that exercise control over companies should be held liable, even where it was not directly them, but the other company that committed an unlawful act. In order for this liability mechanism to be effective, Burkhardt advocates for a presumption in favor of control. This helps to balance the information deficit litigants suffer because they do not have access to internal corporate documentation. 

IV. Conclusion 

At the beginning of the roundtable discussion, Duval pointed out that Germany’s stance on any binding due diligence regulation will be decisive. Germany’s role in the EU-wide discussion can hardly be overstated. Germany amounts to 30% of all EU exports, and to 20% of all imports. Factoring in France’s loi de vigilance, both countries together could put enough pressure on the European legislators to push for an EU-wide mandatory due diligence regulation. 

Germany is as close as it has ever been to adopting a Lieferkettengesetz. Yet, the process has come to a halt. The government position paper should have been discussed in the Cabinet at the end of last year for the law to be adopted in 2021. All ministers have to agree, afterwards the proposition will go to Parliament. Heydenreich said that the law will have to be adopted in May, or June the latest; Parliamentary session ends in July. 

At least Germany’s involvement in the EU-wide debate looks promising. Germany’s Council Presidency as well as individual German MEPs have had a tremendous impact on the adoption of an EU-wide due diligence regulation.

More than twenty years ago nine local activists from the Ogoni region of Nigeria were executed by the then military dictatorship. The story of the Ogoni Nine does not stop in Nigeria; the tale of the nine men, the many lives lost, and the environmental degradation linked to the extraction of oil in the region by Shell has quite literally travelled the world. What is often commonly referred to as the Kiobel case—after the application lodged by Esther Kiobel, the widow of Dr. Barinem Kiobel—originated in Nigeria, has been heard by courts in the USA, and is currently before Dutch courts. The Kiobel case, as well as a flurry of other cases (e.g. the Bralima case before the Dutch NCP, the Nevsun case before the Canadian courts, the Vedanta case before the UK courts, or the Total case before the French courts, among others), embodies the flight of corporate accountability cases out of their original African contexts.

This transnational quest for an effective remedy by those who’s human and/or environmental rights have been violated is understandable, but it also raises serious questions about the consequences of the delocalisation of access to remedies in such cases. This conference aims to provide a forum for critical discussions of the justifications for, and consequences of, using various delocalised ‘sites of justice’ for human and environmental rights violations associated with ‘doing business’ in Africa. The aim is not to focus on Kiobel or Nigeria in particular, although contributions on this case are welcome, but to generally engage in a critical examination of cases that ‘migrate’ between different sites of justice, and the associated benefits and drawbacks of the displacement of corporate accountability out of African courts to courts or non-judicial mechanisms (such as OECD National Contact Points) based in the so-called Global North. In doing so, we strongly encourage applicants to consider a variety of (critical) theoretical perspectives in the analysis of this phenomenon.

In this collaboration between Asser Institute’s Doing Business Right project and AfronomicsLaw, we welcome contributions from scholars working on African international law, African perspectives of international/transnational law, as well as scholars working on business and human rights more generally. The aim is to bring a plurality of voices into conversation with each other, and to generate original (and critical) engagements with the operation of transnational justice in the business and human rights space. With important developments taking place at the international level, such as the drafting of a binding Treaty on Business and Human Rights, the preparation of European legislation on mandatory human rights due diligence, as well as the emergence of the African Continental Free Trade Area (AfCFTA), which is set to foster business across African borders, such discussions are not only timely, they are also necessary.

Deadlines and requirements:

In order to increase engagement from a broader range of actors from the continent, the conference will be bilingual, English and French. The conference presentations and outputs will also be accepted in either language (2,000 word blog post as part of a special symposium on AfronomicsLaw, as well as a full-length paper for a special issue with a journal (journal tbd)).

Overview of deadlines:

• Deadline for abstract submission: 15 January 2021
• Draft papers due: 1 March 2021
• Digital conference: 24-26 March 2021
• Final contribution to blog symposium on AfronomicsLaw: 30 April 2021
• Final papers due for special issue with journal: 1 July 2021

Please submit abstracts in English or French (250 words) accompanied by a short CV (max. 5 pages) to m.plagis@asser.nl by 23:59 CET on 15 January 2021.

Editor's note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. Alongside her studies, she is working as student research assistant at the Institute for International and Foreign Private Law in Cologne. Since September 2020, she joined the Asser Institute as a research intern for the Doing Business Right project

On 25 September 2020, the final hearings in the Kiobel case took place before the Dutch District Court in The Hague. This case dates back to 25 years ago; and the claimants embarked on a judicial journey that led them from the US to the Netherlands. On 16 October 2020, the TMC Asser Institute hosted an online roundtable discussion to present and discuss the arguments raised before the Dutch court. The three panelists, Tara Van Ho from Essex University, Tom de Boer from Prakken d’Oliveira, and Lucas Roorda from Utrecht University each provided their stance on the case and analyzed the past, the present and the main issues of the proceedings.

Depending on the outcome of the case, Kiobel could pave the way for further business human rights litigation in Europe. It raises questions ranging from jurisdiction, applicable law, parent company liability and fee arrangements to state sovereignty and the responsibility of former colonial states vis à vis countries that emerged from colonial rule. Below you will find the highlights of our discussion, you can also watch the full video on the Asser Institute’s YouTube channel.More...

Between 2010 and 2015, 7.6 million hectares of forests were lost every year. Deforestation not only causes immense biodiversity loss, but it also has extremely negative repercussions on climate change. Hence, deforestation is one of the world’s most pressing global challenges. 

This online event will discuss the EU Parliament’s new initiative to tackle deforestation. It will examine the initiative’s substance, possible implications for fighting deforestation across the globe, and possible means for enforcement and their challenges, as well as its impact on EU obligations under international (trade) law.

Background

Research has shown that agricultural production is a major driver of deforestation. The majority of global tree cover loss between 2000 and 2015 was caused by agricultural production, and another quarter was due to forestry activities. Furthermore, a large proportion of forest clearance occurs in breach of local legal and administrative requirements. However, only half of the total tropical deforestation between 2000 and 2012 was caused by illegal conversion. Weak enforcement of forest laws in certain countries further compounds the problem of relying on legality as a meaningful threshold to stop conversion for agricultural purposes, especially where political leaders wilfully reduce law enforcement and conservation efforts to favour agribusiness. 

To tackle these closely intertwined concerns, the EU is in the process of enhancing its policies on global deforestation linked to EU imports. In addition to the existent Timber Regulation, assessing the legality of timber origin, and the Renewable Energy Directive, establishing sustainability requirements for biofuel crops, the EU is considering several regulatory and non-regulatory interventions. Among the most profound measures, the EU Parliament is about to approve a ground-breaking Resolution that will require the Commission to propose an EU Regulation ensuring that only agricultural commodities and derived products that are not linked to deforestation, ecosystem conversion and associated human rights violations are marketed in the EU. Building on the Timber Regulation and human rights due diligence responsibilities as prescribed in the United Nation Guiding Principles on Business and Human Rights, the proposal would require economic operators to implement the obligation via non-financial due diligence ensuring that products do not originate from converted forests and ecosystems, regardless of the legality of land-use conversion.

Speakers

• Delara Burkhardt, European Parliament’s Rapporteur for a Motion for an EU Parliament Resolution with recommendations to the Commission on an EU legal framework to halt and reverse EU-driven global deforestation (her draft report is available here).

• Andrea Carta, Senior legal strategist at Greenpeace, EU Unit

• Enrico Partiti, Assistant professor in transnational regulation and governance, Tilburg University

• Meriam Wortel, Netherlands Food and Consumer Product Safety Authority

The discussion will be moderated by Antoine Duval, Senior researcher at the Asser Institute and coordinator of the ‘Doing business right’ project. 

Click here to register for this online discussion.

Editor's note: Enrico Partiti is Assistant Professor of Transnational Regulation and Governance at Tilburg University and Associate Fellow at the Asser Institute. His expertise centres on European and international economic law, sustainability and supply chain regulation. In particular, he studies how private standard-setters and corporations regulate globally sustainability and human rights 

Upcoming Event: Fighting global deforestation through due diligence: towards an EU regulation on forest and ecosystem risk commodities? - 4 November 2020 - 16:00 (CET) - Register Here!

The recent vote in the Environment, Public Health and Food Safety (ENVI) Committee of the European Parliament on binding legislation to stop EU-driven global deforestation is a watershed moment in the global fight against deforestation, ecosystem conversion and associated human rights violations. The ENVI Committee report, that will soon be voted by the plenary, requests the Commission (as provided in Art. 225 TFEU) to table a legislative proposal for a measure disciplining the placing on the EU market of products associated to forest and ecosystem conversion and degradation, as well as violations of indigenous communities’ human rights. The Parliament’s initiative takes place in a policy context increasingly concerned with deforestation, in the framework of a Commission Communication on stepping up EU action to protect and restore the world’s forests which left a door open for legislative intervention. 

The proposed measure would aim to severe the economic link between demand of agricultural commodities, especially by large consumers markets, and negative environmental impacts - including on climate change. Beef, soy and palm oil alone are responsible for 80% of tropical deforestation, and consequent CO2 emissions. In 2014, EU demand was responsible for 41% of global imports of beef, 25% of palm oil and 15% of soy, as well as large shares of other commodities at high risk for forests and ecosystems such as such as maize (30%), cocoa (80%), coffee (60%), and rubber (25%). Protecting just forests is not sufficient, as it risks to displace conversion to other non-forests ecosystems such as the Brazilian cerrado. In light of their negative impact on both forests and other natural ecosystems, such commodities have been labeled as forest and ecosystem risks commodities (FERCs). More...