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.

1. 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...

Editors’ note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague.  She has worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

The Nuremberg Trials were a defining and foundational moment for international criminal law, and the first instance in which the question of international legal responsibility of corporate actors, including natural persons and corporations, was first broached. The Tribunals elected to only prosecute natural persons, however a brief analysis of the reasoning indicates it was political rather than legal considerations that led to this distinction. International law and corporate actors have a storied history that merits drawing the timeline back earlier than Nuremberg. This is the first in a series of blog posts exploring the intersection between corporations and international criminal law (ICL).

As is well known, corporations are not subjected to the Rome Statute and do not fall under the jurisdiction of the International Criminal Court (ICC). Yet, as we will show there have been interesting recent developments at the intersection between ICL and the activities of corporations. In 2014, the Special Tribunal for Lebanon (Al Jadeed S.A.L. & Ms Khayat (STL-14-05)) acknowledged the development of domestic corporate accountability, and determined that ICL has likewise progressed. Meanwhile, cases against individuals (such as the ongoing Lundin case in Sweden) or corporations (such as the Lafarge case in France) involving the activities of corporations abroad have been initiated by national prosecutors on the basis of ICL.

These cases and potential implications will be discussed in more depth in later posts, however it is interesting that while some academics and judges are tracking the ostensibly ‘new’ legal movements to subject corporate activities to greater regulation,^[1] the history of international law itself shows that harmful transnational commerce has been an issue for a long time, and this is not the first time international law has been used as a tool against jurisdiction-hopping corporate crime.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.

Soon after the introduction of the UK Modern Slavery Act (UK Act) in 2015, discussions about establishing similar legislation in Australia commenced. In February 2017, the Attorney-General asked the Joint Standing Committee on Foreign Affairs, Defence and Trade (Committee) to commence an inquiry into establishing a Modern Slavery Act in Australia. The terms of reference of the inquiry included, inter alia, considering the ‘prevalence of modern slavery in the domestic and global supply chains of companies, businesses and organisations operating in Australia’ and whether a Modern Slavery Act comparable to the UK Act should be introduced in Australia. The Committee released an interim report in August 2017 and then a final report in December 2017 – both reports supported the idea of developing a Modern Slavery Act in Australia and set out the Committee’s recommendations with respect to the parameters of a corporate reporting requirement. In the meantime, the Australian Government also published a consultation paper and regulation impact statement outlining its proposed reporting requirement for an Australian Modern Slavery Act.

In June this year, the first draft of the Modern Slavery Bill 2018 (Cth) (the Federal Bill) was introduced into the Australian Parliament. It set out a reporting requirement for large Australian entities to submit a statement on risks of modern slavery in their operations and supply chains. The Explanatory Memorandum to the Federal Bill stated that it supports ‘large businesses to identify and address modern slavery risks and to develop and maintain responsible and transparent supply chains. It will drive a ‘race to the top’ as reporting entities compete for market funding and investor and consumer support.’ On 29 November 2018 the Federal Bill passed both houses of the Australian Parliament incorporating amendments made by the Upper House of Parliament. The amendments resulted in the inclusion of a provision giving the Minister power to request explanations from entities that fail to comply with the reporting requirement (discussed in further detail below) and gives the Minister the power to cause an annual report to be prepared providing an overview of compliance by entities and identifying best practice modern slavery reporting. 

This second blog of a series of articles dedicated to the global modern slavery developments provides an overview of the main elements of the Federal Bill and how it compares to the UK Act. It also discusses the Modern Slavery Act 2018 (NSW) (NSW Act), which was introduced by New South Wales (NSW), a State in Australia. The introduction of NSW Act was relatively unexpected given the movement at the Federal level to introduce national legislation addressing modern slavery in the corporate context. Therefore, this blog will discuss the NSW Act’s interplay with the Federal Bill. It will be followed by a final piece on the modern slavery developments in other jurisdictions in the corporate context. 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 an intern with the Doing Business Right project. 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

CHRB

On 12 November 2018, the Corporate Human Rights Benchmark released the results of its 2018 ranking of 101 companies operating in the apparel, agricultural products and extractives industries. The results show that implementation of the UN Guiding Principles on Business and Human Rights in these sectors is still weak (following the 2017 results) with the average overall score for 2018 being 27% (an increase of 9 percentage points from last year), demonstrating a lack of respect for human rights. The Report identifies that due diligence is a key weakness of the companies that were reviewed, with 40% of companies scoring no points with respect to the due diligence indicator. Other issues identified were the lack of a strong commitment to ensuring that there are ‘living wages’ paid to those working in company operations and supply chains and the failure to meet expectations with respect to preventing child labour in supply chains. Read the 2018 Key Findings Report here.

Australian MSA passes both houses of Parliament

On 29 November 2018, the Modern Slavery Bill 2018 (Cth) passed both houses of the Australian Parliament. Once enacted, the Act will require Australian entities and entities carrying on a business in Australia that have a consolidated revenue of at least $100 million to prepare a Modern Slavery Statement covering mandatory criteria. Criteria that such entities will have to report on include the risks of modern slavery practices in their operations and supply chains and the actions they take to assess and address those risks, including due diligence and remediation processes. It is likely that the Act will come into effect on 1 January 2019 and accordingly the first Modern Slavery Statements will be due by 1 January 2021. 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: Imke B.L.H. van Gardingen (LLM Int. and EU labour law, MA Korean Studies) is a policy advisor on labour migration at the Dutch Federation of Trade Unions (FNV) and a researcher on DPRK overseas labour.

On November 8, 2018 a North Korean overseas worker who had worked in slave like conditions for a Polish shipyard, a supplier of a Dutch shipbuilding company, has filed a criminal complaint against the Dutch firm. The Dutch Penal Code, article 273f(6), includes a provision criminalizing the act of ‘profiting’ from labour exploitation, targeting not the direct perpetrators in the labour exploitation, but the ones profiting from this exploitation. This is a unique case that aims to hold the company at the top of the chain accountable for modern slavery in its supply chain. A chain that in the case of shipbuilding is rather short; the buyer subcontracts the core business of building the complete hull under detailed instructions cheaply abroad. More...

Editor's note: Sara Martinetto is a research intern at the T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

In my previous blog, I explained how the negotiations on a prospective Treaty on Business and Human Rights are going hand-in-hand with the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The Principles – developed by Professor John Ruggie, and approved by the UN Human Rights Council in 2011 – have attracted widespread consensus among both States and corporations.[1]  Nowadays, the UNGPs are regarded as crucial to hold corporations accountable for human rights abuses connected to their activities. However, the UNGPs are not binding, and they need to be operationalized in national law, as reaffirmed in Human Right Council Resolution 26/22. To date, National Action Plans[2] appear as the preferred tool to transpose the Principles into national law. Nevertheless, their provisions are often of a descriptive nature, resembling more a declaration of intent rather than an effective implementation of the UNGPs.[3] Only recently, some States have actually adopted hard law instruments on Business and Human Rights, and the UK Modern Slavery Act (2015) is one of them. The Act, aimed at tackling modern slavery and human trafficking, was sponsored by Theresa May and Lord Bates in 2014 and came into force on 29 October 2015.

Almost two years from the entry into force of the Act, this post aims at giving a brief account of what the Modern Slavery Act is and how it has been applied so far. The main focus will be on Section 54 of the Act (‘Transparency in the supply chain’), which prescribes a reporting obligation for corporations. More...