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...

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: 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.

In Part II of this blog series, I intend to outline the different proposals for a Lieferkettengesetz. First, the Initiative Lieferkettengesetz’s model law, secondly the proposal submitted by the Ministry for Labour and Social Affairs and the Ministry for Economic Cooperation and Development, and lastly, I will present the amendments pushed by the business sector and the Ministry for Economic Affairs and Energy.More...

On Friday, 16 October, from 16.00-17.00, we will organise an online discussion about the Kiobel v. Shell case, currently before Dutch courts in the Hague. The discussion will retrace the trajectory followed by the case in reaching The Hague, explain the arguments raised by both parties in the proceedings, and assess the potential relevance of the future ruling for the wider debate on corporate accountability/liability for human rights violations. 

Background

In 1995, nine local activists from the Ogoniland region of Nigeria (the Ogoni nine) were executed by the Nigerian authorities, then under the military dictatorship of General Sani Abacha. They were protesting against the widespread pollution stemming from the exploitation of local oil resources by a Nigerian subsidiary of Royal Dutch Shell when they were arrested and found guilty of murder in a sham trial. Their deaths led first to a series of complaints against Royal Dutch Shell in the United States on the basis of the alien tort statute (ATS). One of them, lodged by Esther Kiobel, the wife of one of those killed (Dr Barinem Kiobel), reached the US Supreme Court. Famously, the Court decided to curtail the application of the ATS in situations that do not sufficiently 'touch and concern' the territory of the United States.

This ruling put an end to Esther Kiobel's US lawsuit, but it did not stop her, together with three other widows (Victoria Bera, Blessing Eawo and Charity Levula), from seeking to hold the multinational company accountable for its alleged involvement in the deaths of their husbands. Instead, in 2017, they decided to continue their quest for justice on Royal Dutch Shell’s home turf, before Dutch courts in The Hague. 25 years after the death of the Ogoni nine, the court in The Hague just finished hearing the pleas of the parties and will render its much-awaited decision in the coming months.

Confirmed speakers

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 the international stage, Germany presents itself as a champion for human rights and the environment. However, as this blog will show, when it comes to holding its own corporations accountable for human rights violations and environmental damage occurring within their global supply chains, it shows quite a different face.

In recent years, German companies were linked to various human rights scandals. The German public debate on corporate accountability kickstarted in earnest in September 2012, when a factory in Karachi, Pakistan, burned down killing almost 300 people. The factory had supplied KiK, Germany’s largest discount textile retailer with cheap garments. Then, over a year and a half ago, a dam broke in Brazil, killing 257 people. The dam had previously been certified to be safe by TÜV Süd Brazil, a subsidiary of TÜV Süd, a German company offering auditing and certification services. There are many more examples of incidents in which German companies were involved in human rights violations occurring within their supply chains, yet eight years after the factory in Pakistan burned down, and nine years after the unanimous endorsement of the UN Guiding Principles on Business and Human Rights by the UN Human Rights Council, there is still no binding German legislation imposing some type of liability onto companies that knowingly, or at least negligently, fail to uphold human and labor rights in their supply chain.

This is despite the fact that Germany, the third-largest importer worldwide, with its economic power and negotiation strength on the international stage, could have a dramatic impact on business practices if it were to embrace a stronger approach to business and human rights.  

In the coming two blogs I am to take a critical look at Germany’s recent policies related to corporate accountability and discuss the current developments (and roadblocks) linked to the potential adoption of a Lieferkettengesetz (Supply Chain Law). In this first post, I focus on the effects of the National Action Plan 2016-2020, building on recently released interim reports. In my second blog, I will then turn to the various proposals and political discussions for mandatory due diligence regulation (Lieferkettengesetz).More...

Editor’s note: Katharine Booth holds a LLM, Advanced Programme in European and International Human Rights Law from Leiden University, Netherlands and a LLB and BA from the University of New South Wales, Australia. She is currently working at the Asser Institute in The Hague. She previously worked as a lawyer and for a Supreme Court Justice in Australia.

This series of blog posts focuses on the regulation of so-called ‘gangmasters’ in the UK and Australia. A ‘gangmaster’ is an old English term for a person (an individual or business) who organises or supplies a worker to do work for another person.[1] Gangmasters have been described as ‘middlemen’ or ‘brokers’ between a worker and a business that needs temporary, and often seasonal, labour. In other countries, including Australia, gangmasters are commonly referred to as labour hire providers or labour market intermediaries.

In recent years, legislation has been implemented in the UK and three Australian States (Queensland, Victoria and South Australia) requiring gangmasters to be licensed. According to Judy Fudge and Kendra Strauss, central to these licensing schemes is the protection of vulnerable workers from forced and unfree labour and exploitation:

“[E]vidence suggests that ‘sweating’ at the bottom end of the labour market (increasingly populated by migrant workers, both documented and undocumented, in many countries) often involves labour intermediaries who exploit the ways in which processes of racialization and the construction of new categories of social difference, instigated by immigration regimes, render some workers extremely vulnerable—including to forced and unfree labour.”

As noted by Kendra Strauss, migrant workers are especially vulnerable to exploitation as they often migrate from less developed economies, have a precarious migrant status, and are employed in poorly-paid positions. They often lack English language skills and have little knowledge of their legal entitlements and pathways for accessing remedies which, according to an Oxfam GB report, makes it unlikely that they will report abuse or exploitation, for fear of losing their jobs. Moreover, as Sayomi Ariyawansa explains, the three-tiered or tripartite arrangement between the worker, gangmaster and host business means that there is no direct contractual relationship between the worker and host business and little oversight of the legal arrangements between the worker and gangmaster. This makes it easy for unscrupulous gangmasters to slip through legal cracks, but also for businesses to unknowingly enter into arrangements with gangmasters that do not comply with the law.

This series of blog posts explores the connection between the regulation of gangmasters and the enactment of modern slavery legislation, namely legislation calling on companies to report on modern slavery and other labour and human rights abuses in their corporate supply chains. It is divided into four main parts. Part 1 of this series explores two main issues. (1) The circumstances that led to the enactment of gangmaster licensing schemes in the UK and Australia, and the laws’ provisions relating to the licensing of workers. (2) The limitations of these laws, particularly the inability of licensing schemes to hold liable companies that enter into business arrangements with gangmasters, as well as companies higher in the supply chain. Part 2 explores reform of these laws in the UK and Australia in view of the relatively recent modern slavery legislation implemented in both countries.More...

Editor’s note: Katharine Booth holds a LLM, Advanced Programme in European and International Human Rights Law from Leiden University, Netherlands and a LLB and BA from the University of New South Wales, Australia. She is currently working at the Asser Institute in The Hague. She previously worked as a lawyer and for a Supreme Court Justice in Australia.

Both the UK and Australia have enacted legislation regulating the activities of ‘gangmasters’ or labour hire providers. Part 1 of this series of blog posts examines the circumstances that led to the enactment of labour hire licensing schemes in both the UK and Australia, and some key limitations of these laws.  Part 2 explores two issues closely connected to the business and human rights context. (1) Reform (in the UK) and potential reform (in Australia) of these laws in light of the increasing national and international recognition of modern slavery, human trafficking, labour exploitation and other human rights violations in corporate supply chains. Both the UK and Australia have enacted ‘modern slavery laws’ requiring certain companies to publish annual statements addressing human rights violations in their operations and supply chains. At the same time as the introduction of the UK Modern Slavery Act, the relevant gangmasters licensing authority (the Gangmasters Licensing Authority (GLA)) was empowered with broad ‘police-like’ powers to investigate offences under that Act. These powers have shifted the authority’s focus from the passive regulation of the gangmasters licensing scheme to the active enforcement of compliance with the Modern Slavery Act. (2) However, as currently enacted, modern slavery laws are not perfect. A key criticism of these laws is that they do not impose strong enforcement mechanisms (particularly financial penalties) on companies that fail to comply with their provisions. The imposition of penalties is central to ensuring that companies take note of the importance of eliminating slavery from their supply chains. More...

Editor’s note: Katharine Booth holds a LLM, Advanced Programme in European and International Human Rights Law from Leiden University, Netherlands and a LLB and BA from the University of New South Wales, Australia. She is currently working with the Asser Institute in The Hague. She previously worked for a Supreme Court Justice and as lawyer in Australia.

Overview

On 12 February 2020, the United Nations High Commissioner for Human Rights (Commissioner) issued a report on all business enterprises involved in certain activities relating to Israeli settlements in the Occupied Palestinian Territory (OPT) (Report). The Report contains a database of 112 businesses that the Commissioner has reasonable grounds to conclude have been involved in certain activities in Israeli settlements in the West Bank. Of the businesses listed, 94 are domiciled in Israel and the remaining 18 in 6 other countries: France, Luxembourg, the Netherlands, Thailand, the UK and the US. Many of the latter are household names in digital tourism, such as Airbnb, Booking, Expedia, Opodo and TripAdvisor, as well as Motorola. More...

This event co-organised with FIDH and SOMO aims to provide a detailed overview of the latest developments in the field of BHR regulation. The first part of the afternoon will be dedicated to a comparative review of some national developments in BHR regulation. The speakers have been asked to focus their presentations (max 10 minutes) on outlining the recent (and sometimes future) changes in the various regulatory models introduced by specific European states. They will also discuss the (expected) effects of the different regulatory models based on comparative analyses and empirical data gathered so far.

The second part of the afternoon will then focus on discussing the latest draft of the proposed binding treaty on BHR. The speakers have been asked to prepare short presentations (max 10 minutes) on the strengths and weaknesses of the current draft (with an eye on the changes introduced with regard to the Zero draft). The presentations will be followed by open exchanges with the participants on the various points raised (including concrete proposals for improvement).

Where: Asser Institute in The Hague

When: 14 November from 13:00

Draft programme: 

13:00 – 13:15 Welcome

13:15 – 15:00 - BHR regulation: Recent Developments in Europe – Chair Maddalena Neglia (FIDH)

• Nadia Bernaz (Wageningen University) – Recent developments in the UK
• Anna Beckers (Maastricht University) – Recent developments in Germany
• Antoine Duval (Asser Institute) – Recent developments in France
• Lucas Roorda (Utrecht University/College voor de Rechten van de Mens) – Recent developments in the Netherlands
• Irene Pietropaoli (British Institute of International and Comparative Law) – Recent developments in BHR regulation: A comparative perspective

15:00 – 15:15 Coffee Break 

15:15 – 17:00 – Revised Draft of the Binding BHR Treaty: Strengths and weaknesses – Chair Mariëtte van Huijstee (SOMO)

• Nadia Bernaz (Wageningen University)
• Anna Beckers (Maastricht University)
• Antoine Duval (Asser Institute)
• Irene Pietropaoli (British Institute of International and Comparative Law)
• Lucas Roorda (Utrecht University/ College voor de Rechten van de Mens)

17:00 -  Closing Reception.

This event is organised with the support of:

Editor's 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 previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

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

Revised Draft of Treaty on Human Rights and TNCs has been published

The Revised Draft has been released here by the Permanent Mission of Ecuador. The Draft comes ahead of the intergovernmental negotiations to be held at the 5th session of Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (OEIGWG). For further comment and context, see Larry Catá Backer's blog, the BHRRC's debate the treaty section on the revised draft, as well as the BHRJ Blog's series on the revised draft.

Business Roundtable redefined the group’s Purpose of a Corporation 

A prominent group of business leaders has redefined its purpose of a corporation to include stakeholder interests. In a statement signed by 181 CEO members of the Business Roundtable, an American group of business leaders, the statement of “the purpose of a corporation” has been altered from the long-standing commitment to shareholder primacy, to a broader ‘Commitment to All Stakeholders’. The change was announced in an advertisement in the Wall Street Journal and signed by 181 members, including the business leaders of Amazon, American Airlines, Bank of America, Coca-Cola, Marriott, Lockheed Martin, Morgan Stanley, UPS, and Walmart.

Chairman of Business Roundtable and CEO of JPMorgan Chase, Jamie Dimon, explained in the release: “The American dream is alive, but fraying. Major employers are investing in their workers and communities because they know it is the only way to be successful over the long term. These modernized principles reflect the business community’s unwavering commitment to continue to push for an economy that serves all Americans.”

This reconceptualisation of the purpose of corporations has been met with cautious enthusiasm; however, the statement has no bearing on the legal obligations of the signatories, and whether this materially alters business conduct by the signatories’ companies is yet to be seen.

The ‘Business Roundtable Statement on the Purpose of a Corporation’ can be found here.

UK Supreme Court to hear Okpabi case against Shell

The Supreme Court has granted permission for Nigerian communities to appeal their case concerning environmental degradation against Royal Dutch Shell. Previously the Court of Appeals rejected jurisdiction for the claimants, however the Court’s reasoning was fundamentally undermined by the subsequent Supreme Court judgement in Vedanta. See our previous post here concerning how these cases are related, and how Vedanta has paved the way for jurisdiction to be found in the Okpabi case. See the statement by Leigh Day, working with the appellants, here.

In another case concerning the liability of a UK parent company for harms perpetrated abroad by a subsidiary that hinged on jurisdiction, the Supreme Court refused permission in AAA v Unilever PLC for Unilever subsidiary employees to appeal. Leigh Day have announced they will now move to file cases with the UN Working Group and the OECD.

Samsung France indicted for deceptive commercial practices for not abiding by CSR statements

NGOs Sherpa and ActionAid France have successfully obtained an indictment against Samsung France for deceptive commercial practices. Preliminary charges were lodged in April by a Paris investigating magistrate in the first French case in which ethical commitments have been recognised as likely to constitute commercial practice.

The organisations argue that public ethical commitments by Samsung to workers' rights were misleading, citing alleged labour abuses and child labour in factories in China, South Korea and Vietnam. The case represents a novel approach to litigating extraterritorial business human rights abuses; even in the aforementioned Vedanta case in the UK, there was a similar (brief) suggestion that CSR-style public commitments could be actionable.

Guatemalan shooting victims announce settlement with Pan American Silver in Canada

It has been announced that landmark 2017 Canadian case Garcia v. Tahoe Resources has been resolved between the parties. The case concerned remedy for 2013 shooting of protesters by Tahoe Resources mine security on April 27, 2013 outside Tahoe’s Escobal Mine in south-east Guatemala. The resolution included a public apology from Pan American Silver, who acquired Tahoe Resources earlier this year, while other terms of the settlement remain confidential. Settlements were reached with three of the claimants earlier, but the remaining four only settled on 30 July when PAS issued a public apology and acknowledgement of the violation of their human rights by Tahoe.

In 2017, the BC Court of Appeal confirmed jurisdiction over the case in Canada, finding that the “highly politicized environment” surrounding the mine meant that there was a “real risk” that the plaintiffs would not obtain justice in Guatemala, permitting the claimants to use the Canadian forum. The head of security for the mine is also facing criminal proceedings in Guatemala.

Remedy being reached has led to celebration from commentators, however no further legal precedent has been set than that from the 2017 appeal, so it might have limited value for future claimants. It has been surmised that settlement was reached because of the overwhelming evidence in the case: video footage from security cameras showed protestors being shot in the back as they fled the mine site.

See also: The Guardian – Brazilian mining company to pay out £86m for disaster that killed almost 300 people and San Francisco Chronicle – Suit alleging US chocolate makers collaborated in slave labor proceeds for US developments.

 More...

Editor’s note: Daniel Iglesias Márquez is an external researcher in Business and Human Rights at the Tarragona Centre for Environmental Law Studies. He holds a PhD from the Rovira Virgili University in Tarragona (Spain). Other main fields of interest include International Environmental Law, International Criminal Law and European law.

The EU and its Member States have largely endorsed the UN Guiding Principles on Business and Human Rights (UNGPs) in their Corporate Social Responsibility (CSR) strategy and have committed to supporting their implementation.[i] The UNGPs state that companies have a responsibility to respect human rights wherever they operate. Companies are therefore expected to take proactive steps to ensure that they do not cause or contribute to human rights abuses within their global operations and to respond to human rights abuses when they do occur. This implies establishing due diligence processes to identify, prevent, mitigate and record potential and actual adverse human rights impacts.

Although the EU has not played a constructive role at the Geneva negotiations for a UN Treaty on business and human rights,[ii] some modest developments in the right direction have been made at the EU level to foster a culture of ‘doing business right’ among companies in certain industrial sectors. Put differently, the EU has adopted regulations and directives that implement the UNGPs.

Due diligence requirements are the most common way of ensuring that business behavior meets social expectations. An example of this is the new EU Conflict Minerals Regulation (Regulation),[iii] which requires EU companies to ensure the responsible sourcing of minerals and metals. This EU law has an extraterritorial reach since due diligence requirements must be exercised by a company throughout its international supply chain. However, the Regulation raises a number of challenges ahead that may affect its purpose and implementation. More...

On Thursday (2 November), the T.M.C. Asser Instituut hosted a roundtable on the role of financial institutions in ensuring responsible business conduct and, in particular, fostering respect for human rights. The discussion focused on the Dutch Banking Sector Agreement on international responsible business conduct regarding human rights (DBSA or Agreement), including details of its key features and the practicalities of its implementation, alongside the theme of responsible banking more generally. More...

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

In current discourse, the most pressing issues concerning human rights and business are often associated with the developing countries to which manufacturing is outsourced. However, the “western world” also faces new challenges as far as workers’ rights are concerned.

It is cheap and convenient for people to book a car ride or order their favourite takeaway meal at a few swipes of their smartphone. App-based service companies are thus very popular among consumers – and are consequently flourishing. Conversely, some doubts have been cast on the fairness of the working conditions of people contracted by these companies. A central issue in this respect relates to the status of their workers, who on paper are self-employed, but in reality are subject to the control of the company, a condition which clashes with being independent. This post aims firstly to analyse the labour conditions of gig economy workers in Europe, with a focus on some of the main service platforms, namely Uber, Deliveroo, Foodora, and Hermes Parcels: the majority of these companies, Uber in particular, are transnational, operating in many national markets and adopting the same business model based on flexible work and lack of security for workers in each market. Secondly, it will scrutinise how National and European institutions and courts are augmenting gig economy workers’ conditions for the better. The issue is crucial in the UK, especially following September’s decision by Transport of London (“TFL”) to reject Uber’s application for a new London license, but legal disputes have also started in other countries (in, among others, the UK, Italy and the USA). The UK Parliament is also discussing the matter, and the EU Commission has started a round table with trade unions and employers to find new solutions to address the issue. 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

The Court of Appeal in London recently handed down its judgment in Dominic Liswaniso Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (Lungowe v Vedanta) addressing issues of jurisdiction and parent company liability. The judgment runs contrary to the historical legal doctrine that English domiciled parent companies are protected from liability for their foreign subsidiaries’ actions. This decision clarifies the duty of care standard a parent company owes when operating via a subsidiary and opens the gates to other English domiciled companies and their subsidiaries being held accountable for any human rights abuses. More...

Editor's note: This report compiles all relevant news, events and materials on transnational business regulation 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: 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...

Editor's Note: Marie Wilmet is a research intern in Public International Law at the Asser Institute. She recently graduated from Leiden University’s LL.M. in Public International Law. Her main fields of interest include international criminal law, humanitarian law and human rights law as well as counterterrorism.

The Alliance for Torture-Free Trade was launched on 18 September 2017, at the 72^nd Session of the United Nations (UN) General Assembly, by a common initiative of Argentina, the European Union (EU) and Mongolia. It aims at ending the trade in goods used to carry out the death penalty and torture. Indeed, even though torture is unlawful under public international law, these goods are currently available on the open market across the globe. By banning such tools from global trade, the Alliance hopes to reduce the possible human rights violations by complicating the perpetrators’ acquisition of the means to execute and torture people.

This initiative is part of a broader agenda both at the UN and EU level. It falls under the broader umbrella of UN projects such as the UN Guiding Principles for Business and Human Rights or the UN Global Compact. Moreover, the EU has tried in the recent years to strengthen the rule of law by conducting policies where trade and values are more interrelated. As the EU Trade Commissioner Cecilia Malmström stated, “human rights cannot be treated as an afterthought when it comes to trade”.

This blog will first retrace the origins of the Alliance by outlining the current factual and legal framework surrounding torture, the death penalty and related trade. Then, the Alliance and its ambitions will be analysed, along with the chances of its effective implementation. 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...

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.

Having explained the Italian legal trajectory of the Ilva case, this second post focuses on the transnational reach of the case. Two main actors have played (or play) a crucial role: the European Union (especially the EU Commission) and the European Court of Human Rights (ECtHR). Both have tackled the Ilva case from different perspectives, depending on their competences. The Commission even dealt with the case from two distinctive viewpoints, as it started infringement proceedings related environmental protection state and aid.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.

More than 11000 deaths and 25000 hospitalisations: the numbers divulged by the prosecution expert report assessing the human consequence of the operation of Ilva industries in the Italian city of Taranto are staggering. The environmental disaster caused by the plant brought the whole area to its knees and, in spite of all the efforts made, is still on-going. This is the story of a never-ending conflict. A conflict between different rights, which need to be balanced; between public authorities, who bear responsibility for ensuring and protecting those rights; between different normative levels and powers, given the numerous infringement proceedings opened by the EU Commission and the most recent claims lodged to the European Court of Human Rights (ECtHR). In the following sections I will try to shed some light on the main legal aspects of this tragic saga. For clarity, this article is divided in two posts: the first deals with the national level, while the second focuses on the supranational dimension of the case.More...