Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

The 21^st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...

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.

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 and on various websites. You are invited to complete this compilation via the comments section below. Feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

Shell-Eni Bribery Case: On 5 March, the corporate bribery trial against oil companies Shell and Eni was postponed to 14 May by a court in Milan, Italy.  The charges against the companies are bribery and corruption in the 2011 purchase of a Nigerian offshore oilfield, one of the most valuable oilfields in Africa. Although both firms denied the charges, the corruption watchdog Global Witness claimed that hundreds of millions of dollars had been paid to Nigeria’s former president and his former oil minister as pocket bribes. Global Witness calls the case one of the biggest corruption scandals in the history of the oil sector. The trial in the Milan court is expected to last 12-18 months.

Jesner v. Arab Bank: On 24 April, in a 5-4 vote, the US Supreme Court ruled in the Jesner v. Arab Bank case that foreign corporations cannot be brought before US courts under the Alien Tort Statute (ATS). Between 2004 and 2010, thousands of foreign nationals sued Arab Bank under the ATS, claiming that the Bank’s officials allowed money transfers through the New York branch of the Bank to Hamas who committed violent acts in Israel and Occupied Palestinian Territories. The Supreme Court held that foreign corporations cannot be sued under the ATS. Furthermore, the Court claimed that international law today does not recognize “a specific, universal, and obligatory norm of corporate [tort] liability”, which is a prerequisite to bringing a lawsuit under the ATS. In the Court’s lead opinion, Justice Kennedy stated that "Courts are not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one.” In her dissenting opinion joined by three other justices, Justice Sotomayor claimed that the decision "absolves corporations from responsibility under the ATS for conscience-shocking behavior."

Fifth Anniversary of Rana Plaza: April 24th also marked the fifth anniversary of the deadly collapse of Rana Plaza in Dhaka, Bangladesh. Rana Plaza was a five-story commercial building which housed several garment factories employing around 5000 people. The global outcry after the disaster which claimed at least 1134 lives led to numerous initiatives to change business-as-usual in the garment and textile supply chains in Bangladesh and beyond. Despite these initiatives which employed various approaches to the issue of worker safety in the supply chains, it is widely acknowledged that there is still a long way to go to create a safe working environment for workers in the garment and textile supply chains. On 12 April, the Asser Institute hosted a one-day conference on Rana Plaza to take stock of the regulatory and policy initiatives aimed at improving workers’ safety in the garment supply chain (You will find our background paper here).

 Okpabi v. Royal Dutch Shell - Episode. 3? On 27 April, more than 40 UK and international human rights, development and environment NGOs, later supported by academics from different states, urged the UK Supreme Court to allow two Nigerian fishing communities to appeal against the Okpabi v Royal Dutch Shell ruling of the Court of Appeal in February which denied responsibility for UK-based Royal Dutch Shell for the pipeline spills, dating back as far as 1989, which affected approximately 40000 Nigerian farmers and fishermen. The NGOs claimed that the Court of Appeal’s decision erred in many ways as it seriously restricts parent company liability and limits the options available to victims of corporate human rights violations seeking remedy in the UK.More...

The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations’. The Jesner decision, released earlier that day by the U.S. Supreme Court, triggered a tremor of indignation in the human rights movement given the immunity it conferred to foreign corporations violating human rights against suits under the Alien Tort Statute, and led to a flood of legal and academic commentaries online. This panel discussion, organised with the support of the Netherlands Network of Human Rights Research, will address various aspects of the judgment. Its aim is to better understand the road travelled by American courts leading up to the decision with regard to the application of the Alien Tort Statute to corporations, to compare the decision with the position taken in other jurisdictions, and to discuss the ruling's potential broader impact on the direction taken by the business and human rights movement.

Where: T.M.C. Asser Instituut in The Hague

When: Thursday 24 May at 2:30 pm

Speakers:

• Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective

• Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations

• Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner

• Antoine Duval (Asser Institute) - Moderator

Register here!

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.

The collapse of the Rana Plaza attracted public attention from various parts of the world. As a result, the demand to ensure that businesses do not contribute to or commit human rights violations, particularly multinational enterprises (MNEs) which can easily engage in forum shopping between states with lax regulations, started to make itself heard. This increased public interest drove national governments to start addressing this issue in an attempt to prevent MNEs from getting involved in human rights abuses along their supply chains.  In this respect, to deal with the human rights abuses committed by MNEs in the ready-made garment (RMG) sector and beyond, numerous transnational and national initiatives have emerged in different forms since the Rana Plaza disaster. These initiatives include agreements (e.g. the Bangladesh Accord on Fire and Building Safety)  with binding commitments, traditional voluntary CSR-based multi-stakeholder initiatives (e.g. the Alliance for Bangladesh Worker Safety), domestic legal (e.g. the UK Modern Slavery Act and the French law on the duty of vigilance), administrative measures (e.g. the reform of the Department of Inspections for Factories and Establishments in Bangladesh for better factory and labour inspections) or agreements between governmental bodies, businesses and some other stakeholders (e.g. the German Partnership for Sustainable Textiles and the Dutch Agreement on Sustainable Garment and Textile).

These concerted efforts, to ensure responsible business conduct show an extreme variety in terms of their scope, approaches and parties involved.  In particular, the French law on the duty of vigilance and the Dutch agreement on sustainable garment will be the focus on this blog since while the adoption of the former was accelerated by the disaster, the latter was an indirect response to it. It is crucial to scrutinise the implementation of these initiatives and whether or not they positively transform the business-as-usual in the RMG sector. In this blog, after brief explanations of the French and Dutch initiatives, some of the concerns and problems, which may be encountered in their implementation process, will be presented. 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.

After the collapse of Rana Plaza which claimed the lives of 1,138 mostly garment workers and left thousands more injured, the global outcry for improved worker safety in the ready-made garment (RMG) industry of Bangladesh caused by global public interest, media attention and harrowing stories of workers has led to the emergence of various international and national initiatives to address the issue. Three of these initiatives are the Accord on Fire and Building Safety in Bangladesh (the Accord), the Alliance for Bangladesh Worker Safety (the Alliance) and the National Tripartite Plan of Action on Fire Safety and Structural Integrity in the Garment Sector of Bangladesh (the National Initiative).

Although on the surface, these initiatives appear to be quite similar and have the primary objective of improving worker safety in the RMG sector of Bangladesh through inspections and identification of fire, structural and electrical remediations for garment factories, they show considerable differences when looked more carefully. These differences influence the outcomes of the three initiatives on factory remediation for fire, structural and electrical safety in the RMG sector in Bangladesh. In this blog, after a brief description of each initiative (for a broader description, see here), I will discuss the effectiveness of the remediation processes introduced by the Accord, the Alliance and the National Tripartite Plan.More...

The collapse of the Rana Plaza building on 24 April 2013 in Bangladesh left at least 1,134 people dead and over 2,500 others wounded, while survivors and the families of the dead continue to suffer trauma in the aftermath of the disaster. This first blog of our special series assesses the extent to which litigation and particular "soft" mechanisms have secured justice and compensation for victims and brought the relevant actors – whether global brands or individuals – to account for their alleged culpability for the collapse. To do this, it firstly examines the avenues that have been taken to hold corporations legally accountable in their home jurisdictions for their putative contributions to the collapse on the one hand, and individuals (particularly local actors) legally accountable before the courts in Bangladesh on the other. It then considers the effects of softer mechanisms aimed at compensating victims and their dependants. More...

Five years ago, the Rana Plaza building collapsed, taking with it at least 1134 innocent lives and injuring more than 2000 others. This industrial tragedy of incomparable scale constitutes a milestone in the business and human rights discussion. There will always be a 'before' and an 'after' Rana Plaza. Its aftershock triggered potentially seismic changes in the regulation of transnational corporations, such as the much-discussed French law on the ‘devoir de vigilance’. It is, therefore, essential to scrutinize with great care the aftermath of the tragedy: the innovations it triggered in the transnational regulation of the garment supply chain, the different processes initiated to compensate the victims, and in general the various hard and soft, private and public, legal and non-legal initiatives stemming from the urge to tackle a fundamental injustice. Thus, in the days to come we will feature a series of blogs on Rana Plaza and its consequences prepared by our outstanding interns: Raam Dutia and Abdurrahman Erol.More...

Editor’s note: You will find attached to this blog the background paper to the event Five Years Later: Rana Plaza and the Pursuit of a Responsible Garment Supply Chain hosted by the Asser Institute in The Hague on 12 April. 

Background paper: executive summary

Raam Dutia & Abdurrahman Erol (Asser Institute)

The collapse of the Rana Plaza building on 24 April 2013 in Savar, Bangladesh, left at least 1,134 people dead and over 2,500 others wounded, while survivors and the families of the dead continue to suffer trauma in the aftermath of the disaster. The tragedy triggered a wave of compassion and widespread feelings of guilt throughout the world as consumers, policy makers and some of the most well-known companies in Europe and North America were confronted with the mistreatment and abject danger that distant workers face in service of a cheaper wardrobe.

Partly in order to assuage this guilt, a number of public and private regulatory initiatives and legal responses have been instituted at the national, international and transnational levels. These legal and regulatory responses have variously aimed to provide compensation and redress to victims as well as to improve the working conditions of garment workers in Bangladesh. Mapping and reviewing how these responses operate in practice is essential to assessing whether they have been successful in remedying (at least partially) the shortcomings that led to the deaths of so many and the injury and loss suffered by scores more.

This briefing paper outlines and provides some critical reflections on the steps taken to provide redress and remedy for the harm suffered by the victims of the catastrophe and on the regulatory mechanisms introduced to prevent its recurrence. It broadly traces the structure of the panels of the event. 

In line with Panel 1 (Seeking Justice, Locating Responsibility), the paper begins by focusing on litigation that has been conducted to secure justice and compensation for the victims, as well as to bring the relevant actors to account for their alleged culpability for the collapse. To this end, the paper examines the avenues that have been taken to hold corporations legally accountable in their home jurisdictions for their putative contributions to the collapse on the one hand, and individuals (particularly local actors) legally accountable before the courts in Bangladesh on the other; it then considers softer mechanisms aimed at compensating victims and their dependants. 

In keeping with Panel 2 (Never again! Multi-level regulation of the garment supply chain after Rana Plaza: Transnational Responses), the paper then considers the transnational (public and private) regulatory responses following the tragedy, enacted by stakeholders including NGOs, industry associations, trade unions and governments and largely connected to issues surrounding labour standards and health and safety.

Finally, in line with Panel 3 (Never again! Multi-level regulation of the garment supply chain after Rana Plaza: National Responses), the paper looks at numerous (soft and hard) regulatory developments at the national level in response to the Rana Plaza collapse. It charts the legislative response by the government of Bangladesh to attempt to shore up safety, working conditions and labour rights in garment factories. It also focuses on legislative and other arrangements instituted by certain national governments in the EU, and how these arrangements relate to the United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises.

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

Okpabi v Royal Dutch Shell: Court of Appeal finds Shell not liable for Nigerian oil spills

On 14 February 2018, the Court of Appeal in London handed down its Approved Judgment in Okpabi and others v Royal Dutch Shell Plc and another [2018] EWCA Civ 191. The claimants are 40,000 Nigerian farmers and fisherman from the Ogale and Bille communities in the Niger Delta who allege they have suffered from decades of pollution from pipelines belonging to Shell Nigeria, a subsidiary of the British-Dutch multinational oil and gas company Shell. Indeed, in 2011 the United Nations Environmental Programme published an Environmental Assessment of Ogoniland which reported serious contamination of agricultural land and waterways in the community as well as its groundwater at rates 1,000 times higher than permitted under Nigerian law, exposing Ogale’s inhabitants to serious health risks. Meanwhile the Bille community suffered the largest loss of mangrove habitat in the history of oil spills at 13,200 hectares. In its split decision, the Court of Appeal upheld the High Court ruling that it lacks jurisdiction as London headquartered parent company Shell could not be liable for any oil pollution in the Niger Delta caused by its wholly autonomous subsidiary. The villagers now plan to seek permission to take the case to the Supreme Court, with King Okpabi of the Ogale Community stating “We have lost our environment, our farmland and our dignity because of Shell’s operations in our community. The English Courts are our only hope because we cannot get justice in Nigeria. So let this be a landmark case, we will go all the way to the Supreme Court”.

Philippines Commission on Human Rights holding overseas hearings for oil majors

The Republic of the Philippines Commission on Human Rights is set to confront oil majors over their climate change impact through hearings in Manila, New York and London. The hearings are in response to a petition lodged in 2015 which seeks to hold forty-seven companies accountable for Philippine communities suffering from extreme weather. Human Rights Commissioner Roberto Cadiz explained that holding hearings overseas will make the process inclusive, affording all carbon companies the best chance to confront the impact of their businesses. To date, half of the companies, whose products generated around a fifth of historic greenhouse gas emissions, have not responded to the Commission. Those which have responded, questioned the Commission’s jurisdiction or argued that it was for governments and not private companies to tackle climate change. Several international law experts have also filed amicus curiae briefs in support of the petition which back the Commission’s mandate to investigate private companies over harm experienced by Filipinos. The hearings are due to commence in Manila in March 2018, with the overseas sessions following later in the year. The Commission cannot directly impose penalties on any of the respondents; however, it could recommend ways that the companies might alleviate their future operations’ human rights impact.

Tomasella v Nestlé: Consumers sue Nestlé for child labour chocolate

On 12 February 2018, consumer Danell Tomasella filed a Class Action Complaint in Case No. 1:18-cv-10269 in the Massachusetts federal court. The lawsuit against Swiss food and beverage conglomerate Nestlé USA Inc. alleges that the company regularly imports cocoa beans from suppliers in the Ivory Coast and engages in deceptive marketing by hiding that this chocolate supply chain utilises child and slave labour. The plaintiffs claim that in violation of Massachusetts Consumer Protection Law, Nestlé does not disclose its Ivory Coast suppliers’ reliance on the worst forms of child labour which is of material interest to American consumers. They state that “Nestlé has not required its suppliers to remedy this human tragedy” and that it instead continues to be unjustly enriched by the profits from chocolate sales. The allegations highlight that much of the world’s chocolate is “quite literally brought to us by the backbreaking labor of children, in many cases under conditions of slavery”. Nestlé has responded that such consumer class actions “are not the way to solve such a serious and complex issue as forced child labor”, rather “class action lawyers are targeting the very organizations trying to fight forced labor”. More...

Editor's note: Morshed Mannan is a Meijers PhD candidate at the Company Law department of Leiden Law School. He received his LL.M. Advanced Studies in International Civil and Commercial Law (cum laude) from Leiden University and has previously worked as a lawyer and lecturer in Dhaka, Bangladesh. Raam Dutia is currently an intern with the Doing Business Right team at the Asser Institute. He recently received his LL.M. Advanced Studies in Public International Law (cum laude) from Leiden University and has worked at an international law firm in London on a range of debt capital markets transactions.

For many, Uber epitomises the "move fast and break things" ethos of successful Silicon Valley start-ups. The company enters new markets before regulators are ready, capitalising on regulatory bottlenecks and uncertainties in numerous jurisdictions – only to enlist its enthusiastic customer base and other means to challenge regulators when they catch up. The backlash against this mode of operation has been severe, and boycotts and a litany of lawsuits appear to have dented Uber's image and plunged the company into crisis.[1] Elisa Chiaro’s recent blogpost discussed the implications of platform economy enterprises, such as Uber, on the rights and protections of workers. In this, the first of a series of blogposts, we will take a broader view by exploring whether the company’s concerted efforts to conduct operations in a way that avoids or attempts to undermine local, state and national regulations shapes the law across the markets in which it operates. This will be done by appraising the growing literature on the effect of its regulatory arbitrage[2] and evaluating whether the company’s use of algorithms, in conjunction with standardized service agreements, rider agreements and other contracts to govern the relationships between various stakeholders, establishes it as a source of transnational lawmaking within a large network of well-defined stakeholders: drivers, riders and civil society. Uber’s business practices and litigation in the UK will be used as a case study that is illustrative of broader trends. By doing so, we hope to contribute a deeper understanding of the patterns that have emerged through Uber’s local activities in several jurisdictions. In later entries, we will examine the response to these attempts at regulatory arbitrage and private ordering as well as the repercussions this has on the contemporary regulation of the platform economy. 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.

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: Elisa Chiaro is a legal consultant focussing on Business and Human Rights and International Criminal Law. In 2016 she completed an LL.M. at SOAS, University of London. Before that she worked for five years as international corporate lawyer both in Italy and UK. She is admitted to the Bar in Italy.

1.      Introduction

According to the Intergovernmental Panel on Climate Change (“IPCC”) climate change is real: “[h]uman influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history.”[1]

From a scientific point of view, it is well established that the concentration of greenhouse gases (“GHGs”), which are present in nature and essential for the survival of human beings and plants, is linked to the Earth’s temperature, which has been rising steadily since the Industrial Revolution. From the perspective of public health, according to the WHO, an effect of climate change will be an increase of approximately 250,000 deaths per year between 2030 and 2050 due to malnutrition, disease (such as malaria and diarrhoea) and heat stress.

As will be explained in the following section many international agreements and initiatives have emerged to tackle the problem. However the main goal of this post is to analyse some examples of civil judicial and quasi-judicial means that have been used to hold companies accountable for the effects of climate change. The first category under scrutiny will be litigation brought against private companies, such as in the case Lliuya v. RWE AG brought before the German Court and in American cases brought by public institutions (cities or counties) against oil companies. The second category encompasses other grievance mechanisms, such as the notification to the OECD National Contact Points of violation of the OECD Guidelines for Multinational Enterprises (“OECD Guidelines”) by corporations (Dutch NGOs v. ING Bank). 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.

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...

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. Part 2 focused on the potential advantages of using international arbitration to resolve such disputes, as well as the substantial challenges the proposal will face in practice. This Part 3 now provides a case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process. More particularly, it will provide (1) a brief background to the Accord on Fire and Building Safety in Bangladesh, as well as (2) an analysis of its binding arbitration process, before (3) discussing the arbitrations brought by IndustriALL Global Union and UNI Global Union against two global fashion brands under the Accord on Fire and Building Safety in Bangladesh. 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: 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 will give an overview introduction to the proposal for international business and human rights arbitration. It will discuss particularly (1) considerations for the drafters of new arbitration rules for business and human rights disputes. Part 2 will focus on the potential advantages of using international arbitration to resolve such disputes, as well as 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: 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

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