Doing Business Right Blog

T.M.C. Asser Instituut

FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

4. September 2017 Antoine Duval (0)

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

Towards a ‘due diligence’ jurisprudence: The EU Timber Regulation’s requirements in courts - By Wybe Th. Douma

27. July 2017 Antoine Duval (1)

Editor’s note: Wybe Th. Douma is senior researcher in EU law and international trade law at the Asser Institute

 

Although the placing of illegally harvested timber on the EU internal market is prohibited already for over four years, the first court cases are appearing only now. Judges in Sweden and The Netherlands have recently held that the due diligence requirements of the EU Timber Regulation (EUTR) had not been met by two importing companies. The companies should have ensured that the timber from Myanmar and Cameroon was logged in compliance with the local legislation, should have provided extensive evidence of this, especially where the countries in question are prone to corruption and governance challenges, and should have adopted risk mitigation measures. Moreover, another Dutch court recently ordered the Dutch competent authorities to explain why they did not enforce the EUTR in cases where due diligence requirements concerning timber imported from Brazil were not met. In other EU member states, similar court decisions were adopted.[1]

The court decisions show that the EUTR system, aimed at ‘doing business right’ in the timber trade sector, is starting to take effect in practice. Could the ‘unilateral’ EUTR system form an example for other regimes that try to ensure that trade by the EU with the rest of the world contributes to sustainable development and the protection of human rights? And what role does the bilateral Voluntary Partnership Agreement (VPA) on Forest Law Enforcement, Governance and Trade (FLEGT) between the EU and Indonesia play in this respect? More...

A Quest for justice: The ‘Ogoni Nine’ legal saga and the new Kiobel lawsuit against Shell. By Sara Martinetto

21. July 2017 Antoine Duval (0)

Editor's note: Sara Martinetto is an intern at 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.


On 29th June 2017, four Nigerian widows launched a civil case against Royal Dutch Shell (RDS), Shell Petroleum N.V., the Shell Transport and Trading Company, and its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) in the Netherlands. Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, the companies had provided material support, which then led to the arrest and death of the activists.  

In the light of this lawsuit, it is interesting to retrace the so-called ‘Ogoni Nine’ legal saga. The case saw the interplay between multiple jurisdictions and actors, and its analysis is useful to point out some of the main legal issues encountered on the path to hold corporations accountable for human rights abuses. More...


Why Doing Business Right?

26. June 2017 Antoine Duval (0)

Doing Business has been a (if not the) core concern for the post-WWII world order, leading up to contemporary economic globalisation and the ‘free’ movement of goods, capital and ideas across the globe. With our research project, and the launch of this companion blog, we aim to shift the focus towards Doing Business Right. Thanks to the financial crisis in 2008, there is growing awareness of the fact that Doing Business can lead to extremely adverse social and economic consequences. The trust in Doing Business as a cure-all to modernize, democratize, or civilize the world is fading. Moreover, the damaging externalities prompted by the operation of transnational economic activity are more and more visible. It has become harder, nowadays, to ignore the environmental and social consequences triggered elsewhere by our consumption patterns or by our reliance on certain energy industries. What does Doing Business Right mean? How does the law respond to the urge to do business right? What are the legal mechanisms used, or that could be used, to ensure that business is done in the right way? Can transnational business activity even be subjected to law in a globalized world?

This blog will offer an academic platform for scholars and practitioners interested in these questions. With your help we aim to investigate the multiple legal and regulatory constructs affecting transnational business conduct - ranging from public international law to internal corporate practices. We will do so by hosting in-depth case studies, but also more theoretical takes on the normative underpinnings of the idea of Doing Business Right. We aim to be inclusive in methodological terms, and believe that private and public, as well as national and international, legal (and...) scholars should come together to tackle a genuinely transnational phenomenon. Future posts will cover issues as diverse as national, EU, international, transnational regulations - including self-regulation, voluntary codes, and market-based regulatory instruments  - applying to transnational business conduct. Case law from the CJEU, international tribunals (ICJ, arbitral tribunals) and national courts, as well as decisions from international organisations, national agencies (such as competition authorities) will be recurring objects of discussion and analysis. Yet, our perspective is not solely focused on the (traditional) law: management practices of  companies and their effects will also be scrutinized.

This blog is thought as an open discursive space to engage and debate with a wide variety of actors and perspectives. We hope to get the attention of those who care about Doing Business Right, and to provide useful intellectual and legal weapons for their endeavours.

The Editors:

Antoine Duval is a Senior researcher at the Asser Institute since 2014. He holds a PhD from the European University Institute in Florence in which he scrutinized the interaction between EU law and the transnational private regulation of world sport, the lex sportiva. His research is mainly focused on transnational legal theory, international arbitration, and private regulation.  

Enrico Partiti is researcher at the Asser Institute since 2017. He holds a PhD from the University of Amsterdam on private standards for sustainability. His research interest lies at the intersection of EU and international economic law on the one hand, and private regulation for sustainability on the other. He studies the interactions and reciprocal influence between transnational public and private norms, and how they determine and impact on social and environmental sustainability in global value chains.

 

 

Doing Business Right Blog | International Arbitration of Business and Human Rights Disputes: Part 1 - Introducing the proposal - By Catherine Dunmore

Doing Business Right Blog

T.M.C. Asser Instituut

International Arbitration of Business and Human Rights Disputes: Part 1 - Introducing the proposal - By Catherine Dunmore

7. December 2017 Antoine Duval (0)

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.

The proposal for International Business and Human Rights Arbitration

As the working group explains, business and human rights disputes, generally between multinational business enterprises and the victims of human rights abuse, “often occur in regions where official national courts are dysfunctional, corrupt, politically influenced or simply unqualified”. Accordingly, and as discussed further in Part 2, the concept of using the international mechanism of arbitration has attracted great attention as a potentially promising means by which to give victims an effective access to remedy. Indeed, even where capable national court systems are available, the potential for a speedier dispute resolution procedure and globally enforceable awards could render arbitration a preferred means for resolving business and human rights violations

Drafting business and human rights arbitration rules

The proposal does not call for the establishment of a new arbitration institution, but rather acknowledges that human rights disputes are fundamentally different from investor-state or commercial arbitration and that accordingly existing international arbitration rules are poorly suited to the special requirements of human rights cases. As outlined further below, current arbitrators may lack the necessary expertise to handle business and human rights violations. Moreover, and as developed further in Part 2, an inequality of arms between disputing parties is a much greater possibility between corporations and individual victims, versus two private enterprises or an investor and state. Meanwhile, confidentiality is a key factor behind the success of international commercial arbitration, but when adjudicating on disputes involving human rights violations of public concern the standard arbitration provisions dictating party privacy and transparency must be rethought. As a result, the process has begun to draft a new set of rules designed specifically for international business and human rights arbitration. The proposal is that these arbitration rules could be applied in a number of contexts:

  • The parties could select the rules to use in an arbitration conducted entirely by themselves, without assistance from an arbitration institution.

  • The parties could select the rules to use in an arbitration administered with the assistance of an arbitration institution.

  • The parties could select an arbitration institution which has adopted the new business and human rights rules as the rules to govern proceedings conducted under its own auspices.

Identified areas which necessitate the drafting team’s focus include adaptations accounting for (a) the likely parties to business and human rights arbitrations, and (b) the constitution of business and human rights expert arbitration panels.

1. Parties to business and human rights arbitrations

In order to be fit for purpose, arbitration rules for business and human rights must suit the needs of potential parties to disputes. According to the proposal, arbitration could be adapted for use by victims of human rights violations who wish to bring claims against businesses. Consideration will need to be given by the drafters as to how to accommodate claims often by multiple victims, the mechanism to permit joinder of such claims and protections will need to be afforded to vulnerable victims. The proposal also suggests that arbitration could be used to resolve human rights related disputes between commercial parties, for instance where one party neglects contractually-imposed human rights obligations.

2. Business and human rights expert arbitration panels

Any new arbitration rules will need to provide for the appointment of expert arbitration panels to hear and decide business and human rights disputes. All parties to a dispute will need access to a wide variety of arbitrators with specific practical or academic expertise in business and human rights. However, human rights non-governmental organisations have told the working group that, in their view, “commercial arbitrators have neither the expertise nor the sensitivity to human rights matters to enable victims to feel comfortable coming before an arbitral tribunal”.

Accordingly, the working group recommends that arbitration institutions choosing to adopt the new rules create special rosters of human rights arbitrators, in a similar vein to the Permanent Court of Arbitration’s Panels of Arbitrators and Experts for Environmental Disputes. This may mean that existing arbitrators who wish to serve on business and human rights cases will be required to broaden their fields of knowledge and skill sets, whilst lawyers and scholars now working on business and human rights issues may require specialist training in acting as an arbitrator. Additionally, the proposal refers to the possibility of parties appointing qualified individuals to a business and human rights panel, even if they are not listed on an arbitration institution’s formal roster.

Conclusions

At least in theory, international arbitration has the potential to give victims of business and human rights violations access to effective remedy. Yet, the proposal clearly recognises the deficiencies in adopting existing procedural arbitration rules for the purposes of resolving business and human rights disputes and, accordingly, we now see tailored business and human rights arbitration rules being developed. However, care must be taken by the drafting team to ensure that these rules are fit for purpose. The drafters must incorporate not only the positive aspects of international arbitration but also tackle the challenges in practice of applying this alternate means of dispute resolution. These considerations will be discussed further in Part 2 of this blog series.

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