Doing Business Right Blog

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...

Introduction

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...

Introduction

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...

Background

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

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...

Introduction

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

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

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

I. The Nigerian government, the Ogoni Nine and Shell

The factual basis of this case was discussed in a previous post. To summarize briefly (for much longer and comprehensive takes on the case see Amnesty International reports here and here): The courts are concerned with the liability of Royal Dutch Shell, an Anglo-Dutch company, for aiding and abetting various human rights abuses committed by the Nigerian Government against the ‘Ogoni Nine’ in 1995. At that time, Shell was involved in the large-scale extraction of oil in the Niger Delta. This activity caused immense environmental harm to the area, which led the local community to protest against Shell. A protest group, the Movement for the Survival of the Ogoni People (MOSOP), was formed; its leaders, the Ogoni Nine, were subsequently detained and prosecuted for murder. After a sham trial, the Ogoni Nine were sentenced to death and executed. It is the deceased’s widows, Esther Kiobel, Victoria Bera, Blessing Ken Nordu, Charity Levula, who now bring the claim against Shell; first before the US, and now before the Dutch courts.

II. The Kiobel case before the US Supreme Court

The Dutch case is inextricably linked to the prior case before the US courts, which was brought in 2006. As Van Ho pointed out, fearing the partiality of Nigerian courts, and without Brussels Ia to clearly establish jurisdiction in a European court, the claimants searched for another appropriate forum to begin proceedings.

Generally, US courts can dismiss proceedings on the basis of forum non conveniens, if the courts of another country are better suited to hear the case for practical reasons. This exception, however, does not apply to cases brought on the basis of the Alien Tort Statute, a statute which dates back to 1789, and that allows claimants to claim compensation on the basis of human rights violations committed abroad. The Alien Tort Statute began to be invoked in the 1980s; Kiobel was one of the first cases in which it was invoked against a corporation. In order for a claim on the basis of the Alien Tort Statute to succeed, claimants need to argue that Shell breached customary international law. As Van Ho pointed out, this is a very high bar to meet. Without touching upon the merits, the US Supreme Court dismissed the case in 2013 due to lack of jurisdiction – therefore, severely restricting the application of the Alien Tort Statute.

The US Supreme Court found that the presumption against extraterritorial application of US laws applies to claims under the Alien Tort Statute and that neither its wording nor its purpose rebuts that presumption. Since the events giving rise to a potential claim all occurred in Nigeria, the US Supreme Court held that it could not have jurisdiction to hear the case. Chief Justice Roberts, in delivering the opinion of the Court, stated that the facts of a case must ‘touch and concern’ the territory of the United States with such a force that the presumption against extraterritoriality is displaced. Without specifying this test any further, Chief Justice Roberts held that mere corporate presence does not suffice.

III. Kiobel before the Dutch Courts

1. The claimants’ main argument

The claimants are represented by Channa Samkalden, Tom de Boer and Elles ten Vergert from Prakken d’Oliveira. They accused Shell of violating the African Charter on Human and Peoples Rights and the Nigerian Constitution of 1979. Crucially, the arguments were neither brought on the basis of tort, nor based on the doctrine of ‘piercing the corporate veil’. This is because human rights are capable of having horizontal direct effect under Nigerian law applicable as lex loci delicti. The claimants argued that the defendant corporate bodies were accessories to human rights violations, which they committed jointly and severally with the government at the time. The four defendants were Royal Dutch Shell, Shell Petroleum NV, Shell Transport and Trading Company, and the Shell Petroleum Development Company of Nigeria Ltd (SPDC). SPDC is the Nigerian subsidiary, which conducted Shell’s business in Nigeria during the relevant period.

De Boer summarized the argument for Shell’s liability. It rests on four pillars: Firstly, Shell invited the regime to violently suppress the Ogoni protests, to eliminate MOSOP and its leadership (the ‘Ogoni Nine’). Secondly, Shell supported the regime during the ‘Operation Restore Order in Ogoniland’; Shell allegedly provided financial support to the military, procured arms and, together with government officials, ran an intelligence network. Shell incited the government to drastically push back against the protests; the company repeatedly stressed the importance of ‘restoring order’ for Nigeria’s economy. Thirdly, the lawyers argued that Shell had an interest in the outcome of the Ogoni Nine trial and was instrumental to its outcome. This claim is founded on evidence which shows that Shell’s lawyers held a so-called ‘watching brief’, a report on court proceedings produced by a third party representative where third party interests might be at stake. As De Boer points out, Shell’s interest in holding a watching brief for a murder trial was quite questionable. Van Ho stressed that Shell’s lawyers were present for the whole duration of the trial, whereas international media were not. Crucially, the claimants were able to produce evidence that two witnesses were bribed to issue incriminating statements. Lastly, it appeared from official documents that Shell deemed itself able to determine the outcome of the procedure. Shell offered to influence the outcome of the proceedings under the condition that MOSOP would stop their protests.

2. Issues raised by the case

Kiobel is a case of ‘foreign direct liability’ involving transnational civil claims with corporate defendants. As such, as pointed out by Van Ho and Roorda, it faces many hurdles, in particular: jurisdiction, applicable law, merits, and difficult practical issues.

a. Jurisdict

The Hague District Court accepted jurisdiction on the basis of art.4(1) Brussels Ia (domicile) art.8(1) Brussels Ia (plurality of defendants/connected claims) and art. 7(1) RV (Rechtsvordering = Dutch Civil Procedure Rules), which is analogous to art.8(1) Brussels Ia.

Roorda provided a comparative analysis of the approaches taken by different courts to jurisdiction. With regards to ‘connected claims’, in English cases such as Lungowe, Okpabi and AAA, courts employ a more in-depth analysis of the substance of the claims, particularly the relationship between the different ‘compartments’ within the corporate defendants. Dutch courts – as seen in Akpan – apply a more marginal test: The defendant has to show that the claimants are abusing the rule of ‘connected claims’ – which has proven to be quite a high bar. Business and human rights cases bear a potential for the revival of forum necessitatis, a doctrine that is enshrined in art.9(c) RV. Kiobel is one of the first cases in which forum necessitatis is argued; academics repeatedly demand a forum necessitatis provision to be included in Brussels Ia.

b. Limitation period

Short limitation periods of two to five years pose often an unsurmountable barrier to business and human rights cases. As seen in Kiobel, and KiK, it takes years to bring such a case before the appropriate forum. In Kiobel, the lawyers circumvented this problem by framing the case as a human rights case instead of tort action. Under Nigerian law, human rights violations would have to be brought in a sui generis action before the Nigerian Federal High Court according to the Fundamental Rights Enforcement Procedure Rules (FREP). The Fundamental Rights Enforcement Procedure Rules of 2009 abrogated statutory limitations to bring these cases. When the events giving rise to the claim occurred in 1995, the FREP 1979 was still in place, which included a statutory limitation period of one year. The defendants argued that the procedural limitation period of one year must be applied. However, the court concluded that according to Nigerian case law, the FREP statutory limitation period does not attach to the events causing the harm, but to the initiation of proceedings, i.e. the moment when the human rights were invoked.

Roorda also touched upon the idea that art.26 Rome II Regulation (ordre public) could be utilized to circumvent short limitation period, an avenue that no judgement to date has explored.

c. Shell’s liability

In its judgment, the District Court very much focused on the evidence of Shell being directly involved in bribery and invited the claimants to produce further evidence on this claim. This is particularly regrettable because the case poses an opportunity to assess Shell’s broader, large scale involvement in committing the human rights atrocities the Ogoni Nine suffered.

On 8 and 9 October 2019, and on 25 September 2020, four witnesses were heard. Irrespective of the outcome, this was the first time that the claimants could publicly hear the confessions of the men that issued incriminating statements against their deceased husbands.

The District Court decided against the claimants in certain crucial aspects. Firstly, it held that the ‘watching brief’ did not constitute any involvement in the trial. Secondly, the Court held that there was no proof that the Commander of the Rivers State Internal Security Task Force had in any way been influenced by the SPDC. Lastly, the claimants failed to establish that SPDC tried to influence the trial on the condition that the MOSOP agreed to end their protests. The claimants had argued that Shell should have been more vocal about their concerns regarding the issue of a fair trial. Where necessary Shell should have retreated from its business operation in the Niger Delta. The District Court held that Shell sufficiently raised the issue of a fair trial with the Nigerian government and that it would have been unreasonable to expect Shell to cease their explorations in the area.

Roorda elaborated on the fact that these cases are repeatedly framed in terms of domestic tort law issues. But domestic tort law is often not suitable for complex transnational activities that affect human rights. This is why the Alien Tort Statute was a particularly attractive avenue for these cases –like for Kiobel, as it was then possible to frame the case as one of international human rights. Roorda further argued that parental duties of care, which hinge upon company structures, make one lose sight of the broader international dimension these cases are situated in. The fundamental interests are stake are hardly comparable to standard (national) tort law cases. The goal of a business and human rights case, at the end of the day, is not only to compensate the victim, but also to exert constructive influence on a corporate actor, who to date seems to fall outside the reach of the law.

d. Practical issues

Van Ho pointed to the fact that countries have a duty to provide remediation. Nevertheless, there are immense practical hurdles to achieving this goal.

Costs

Hiring a foreign lawyer is the first obstacle that needs to be overcome in business and human rights cases. De Boer pointed out that Dutch national law is fairly rigid when it comes to lawyers’ remuneration. Unlike the US, Dutch law does not provide for alternative fee arrangements, for example ‘success fees’. This is why commencing costly proceedings depends on the support of NGOs; their importance can barely be overstated. In Kiobel, Amnesty International did not only select Prakken d’Oliveira but continued to support the case financially.

Evidence

The issue of evidence was at the core of the discussion. Claimants are obliged to substantiate the claim they are putting forward; however, it is the inherent nature of global supply chains that evidence is buried in companies’ documentations. Claimants generally do not have access to these documents. Under Dutch national law, like in most continental legal systems, there is no provision that allows claimants to obtain incriminating documents from the defendants. It can be attributed to the claimants’ good luck that in 2013, Shell had to provide the claimants with documents pursuant to US discovery rules.

IV. Residual questions and outlook

The legal issues elaborated above evidence the inaptness of national legal systems to deal with transnational cases involving corporate defendants. The panelists explained that claimants find themselves in a race against time: not only with regards to limitation periods, but also concerning practical issues – evidence disappears, witnesses die. Business and human rights cases stand or fail with the capacities of national courts to accommodate these cases in a quick and efficient manner.

Kiobel also raises wider issues regarding the responsibility of former colonial states vis-à-vis countries that emerged from colonial rule. When following the Kiobel proceedings, it must be borne in mind that, as Van Ho pointed out, Shell was granted the drilling and extraction license in 1936, when Nigeria was still a British colony. Cases such as Kiobel could also bear political ramifications, such as a diplomatic fallout.

Concluding her contribution to the panel, Van Ho shared her hope for future NAP negotiations: national procedural law must be amended to accommodate complex transnational cases; when drafting NAPs, governments and legislators ought to regulate for the hurdles claimants such as Esther Kiobel face: the difficulty of finding and paying a lawyer and producing evidence. This is the only way for countries to fulfil their duty to provide remediation for human rights violations.

Watch the full video of the discussion:

Doing Business Right – Monthly Report – February 2018 - By Catherine Dunmore

Transnational legal development and the platform economy - Part 1: Uber’s foray into transnational regulation - By Morshed Mannan and Raam Dutia

Doing Business Right – Monthly Report – January 2018 - By Catherine Dunmore

Internship in Business and Human Rights - Apply by 15 February

Corporate Responsibility for Climate Change: Litigation and Other Grievance Mechanisms - By Elisa Chiaro

Doing Business Right – Monthly Report – December 2017 - By Catherine Dunmore

International Arbitration of Business and Human Rights Disputes: Part 3 - Case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process - By Catherine Dunmore

International Arbitration of Business and Human Rights Disputes: Part 2 - Advantages and challenges - By Catherine Dunmore

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

Doing Business Right – Monthly Report – November 2017 - By Catherine Dunmore

Doing Business Right Blog

Kiobel in The Hague – Holding Shell Accountable in Dutch Courts - Event Report - By Mercedes Hering

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