International Criminal Law and Corporate Actors - Part 2: The Rome Statute and its Aftermath - By Maisie Biggs

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

 

The Rome Statute is a central pillar of international criminal law (ICL), and so any discussion concerning the subjection of legal persons requires a revisit of the negotiations surrounding its drafting. However in the time since its implementation, there appears to have been a shift in ICL regarding corporate liability. Developing customary international law, treaty law and now most domestic legal systems have some established mechanisms for prosecuting legal persons for violations of ICL. More...

The Rise of Human Rights Due Diligence (Part III): A Deep Dive into Adidas’ Practices - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

 

The tragic collapse of Rana Plaza in Bangladesh in 2013, which killed over one thousand workers and injured more than two thousand, brought global attention to the potential human rights risks and impacts that are inherent to the garment and footwear sector.[1] This sector employs millions of workers within its supply chain in order to enable large-scale production of goods as quickly as possible at the lowest cost as market trends and consumer preferences change.[2] These workers are often present in countries where the respect for human rights and labour rights is weak. This creates an environment that is conducive to human rights abuses. Key risks in this sector include child labour, sexual harassment and gender-based violence, forced labour, non-compliance with minimum wage laws and excessive work hours.[3] Accordingly, brands such as Adidas face the challenge of conducting effective human rights due diligence (HRDD), particularly in their supply chains. 

This third blog of a series of articles dedicated to HRDD is a case study looking at how HRDD has materialised in practice within Adidas’ supply chains. It will be followed by another case study examining the steps taken by Unilever in order to operationalise the concept of HRDD. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses. More...

Doing Business Right – Monthly Report – April 2019 - By Shamistha Selvaratnan

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.


Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.


The Headlines

UK Supreme Court hands down judgment denying appeal by Vedanta

Following a significant UK Supreme Court jurisdiction case this month, for the first time a UK company will face trial in their home jurisdiction for environmental and human rights impacts associated with its foreign subsidiary. In Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20, the Supreme Court denied an appeal by Vedanta Resources and its Zambian subsidiary KCM, and allowed the claim to proceed to merits in England. The Court made it clear the real risk that the claimants would not obtain access to substantial justice in Zambia was the deciding factor in the case.

The big news is the Court’s prioritisation of access to justice as a jurisdictional hook for claims in England, however the finding of a “real triable issue” between a foreign claimant and UK parent company is also of great significance. The Court lowered the (previously insurmountable) bar for evidence the claimants have to provide at the pre-trial stage, allowing victims of corporate abuses to rely more heavily on the potential future disclosure of internal defendant documents. The Court called for a more liberal, less formalistic approach to determining whether a parent company potentially exercised control, saying that the existing legal criteria ought not to be a ‘straitjacket’ on the courts.

To the relief of those following previous cases like Okpabi, Lord Briggs confirmed that the size of a company’s operations does not dilute a duty of care – under the previous state of the law, the liability of a company decreased as its power and size increased. Additionally, company group-wide Corporate Social Responsibility policies and guidelines can now potentially be a basis to argue a case of parent company control. Companies making public statements that they protect the environment and human rights in their operations may now be held to these press-friendly representations. Read our full analysis of the case here. More...




International Criminal Law and Corporate Actors - Part 1: From Slave Trade Tribunals to Nuremberg - By Maisie Biggs

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

 

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

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

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

The Rise of Human Rights Due Diligence (Part II): The Pluralist Struggle to Shape the Practical Meaning of the Concept - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

 

The UNGPs second pillar, the corporate respect for human rights, is built around the concept of human rights due diligence (HRDD). Since 2011, following the resounding endorsement of the UNGPs by the Human Rights Council, it has become clear that HRDD constitutes a complex ecology of diverse practices tailored to the specific context of a particular business. The UNGPs are not legally binding and there is no institutional mechanism in place to control how they are to be translated into practice by the companies that purport to endorse them. Nonetheless, numerous companies and regulatory schemes have embraced the idea of HRDD (such as the OECD Guidelines, the French law on the devoir de vigilance, the UK and Australian modern slavery laws and the Dutch Agreement on Sustainable Garment and Textile). 

The operationalisation of HRDD has been shaped over the past 8.5 years by a variety of actors, including international organisations, consultancies and audit firms, as well as non-governmental organisations. These actors have conducted research and developed various methodologies, instruments and tools to define what HRDD is and what it entails in order to assist or influence businesses in its operationalisation. The interpretation of the requirements imposed by HRDD process outlined in the UNGPs is open to a variety of potentially contradictory interpretations. This pluralism is well illustrated by the diversity of actors involved in an ongoing struggle to define its scope and implications.

This second blog of a series of articles dedicated to HRDD looks at it through the lens of the most influential players shaping HRDD in practice by examining their various perspectives and contributions to the concept. Case studies will then be undertaken to look at how HRDD has materialised in practice in specific companies. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect for human rights by businesses. More...

Doing Business Right – Monthly Report – March 2019 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and a contributor to the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

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

US Supreme Court decision: World Bank can be sued for projects that impact on local communities

In late February, the US Supreme Court handed down its judgment in Jam et al. v. International Finance Corporation, ruling that the World Bank does not enjoy absolute immunity from being sued in the United States, including in relation to its commercial activities. In this case, members of a minority fishing community in India sued the International Finance Corporate (IFC) (an arm of the World Bank) in order to hold it accountable for various harms caused by the Tata Mundra power plan, an IFC-financed project. The federal district court found that the IFC enjoys ‘virtually absolute’ immunity from suits. The US Court of Appeals upheld this decision. However, the US Supreme Court overturned this decision finding that international organisations can now be sued in the United States. Read the judgment here. The Asser Institute will be holding an event on 24 April 2019 which will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of international organisations, and international financial institutions in particular. Register for the event here.


Australian Government releases draft guidance in relation to modern slavery

The Australian Government has published its draft guidance for reporting entities under the Modern Slavery Act 2018 (Cth), which was passed by Parliament in December 2018. The draft sets out what entities need to do to comply with the reporting requirement under the Act. Usefully, the draft informs entities on how to determine whether it is a reporting entity and how to prepare a modern slavery statement. It offers suggestions on how to meet the seven reporting criteria, including how to scope out an entity’s modern slavery risks and possible actions that can be taken to assess and address risks identified. Read the draft here. More...






Loosening the Jurisdictional Straitjacket: The Vedanta Ruling and the Jurisdiction of UK Courts in Transnational Civil Liability Cases - By Maisie Biggs

 Editor’s note: Maisie Biggs recently 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 an intern with the Doing Business Right project at the Asser Institute in The Hague. She previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

 

“No one who comes to these courts asking for justice should come in vain. The right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this ‘forum shopping’ if you please, but if the forum is England, it is a good place to shop in both for the quality of the goods and the speed of service.”

Lord Denning in The Atlantic Star [1973] 1 QB 364 (CA) 381–2

 

The United Kingdom Supreme Court today has handed down Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20, a significant judgement concerning parent company liability and the determination of jurisdiction for these claims. Practically, it now means for the first time a UK company will face trial and potentially accountability in their home jurisdiction for environmental harms associated with operations of foreign subsidiaries. 

This is a closely-watched jurisdiction case concerning a UK parent company’s liability arising out of the actions of its foreign subsidiary. The claimants are 1826 Zambian citizens from the Chingola region of the Copperbelt Province. This group action is against UK-domiciled Vedanta Resources PLC and its subsidiary KCM, a second defendant which is incorporated in Zambia. The original claims concern discharges from the KCM-owned Nchanga mine since 2005 which have allegedly caused pollution and environmental damage leading to personal injury, damage to property and loss of income, amenity and enjoyment of land. 

Following the initiation of this claim, in 2015 Vedanta and KCM challenged the jurisdiction of the English courts, however Coulson J dismissed their applications. The Court of Appeal then upheld the dismissal of those applications, so the defendants appealed to the Supreme Court. (See our previous blog on the case here).

The Supreme Court today denied the appeal by Vedanta Resources and KCM, and allowed the claim to proceed to merits in England. The Court made it clear the real risk that the claimants would not obtain access to substantial justice in Zambia was the deciding factor in the case. The Court denied there was an abuse of EU law by the claimants using Vedanta as a jurisdictional hook to sue both the parent company and subsidiary in England, and the claimants succeeded in demonstrating there was a “real triable issue”, nonetheless Zambia was held to be the “proper place” for the case. However, because the Court supported the finding of the first instance judge regarding the risks faced by claimants in accessing substantial justice in Zambia, the appeal was denied, and the case can proceed in England. 

This is a significant judgement, as it now means for the first time a UK company will face trial and potentially accountability in their home jurisdiction for environmental harms associated with operations of foreign subsidiaries. Lord Briggs delivered the judgement on four major issues: the potential for abuse of EU law; whether there was a real triable issue against Vedanta; whether England is the proper place for these proceedings; and whether there was a real risk that substantial justice would not be obtainable in that foreign jurisdiction. 

Why is this significant? For those following this case, and the appeals of Okpabi & Ors v Royal Dutch Shell Plc & Anor (Rev 1) [2018] EWCA Civ 191 and AAA & Ors v Unilever Plc & Anor [2018] EWCA Civ 1532 in the English courts, there are two major findings in this judgement that will likely impact future cases concerning parent company liability. Firstly, the reasoning behind the finding of a “real triable issue” between a foreign claimant and UK parent company, and secondly the primacy the Supreme Court placed on the significance of access to justice as a jurisdictional hook for claims in England. More...






New Event! Human Rights and the Immunity of International Financial Institutions - Reflections on Jam v. IFC - 24 April - Asser Institute

On 27 February 2019, in a 7-1 decision, the US Supreme Court made an end to the absolute immunity from suit that international organisations (IOs) had consistently enjoyed in US courts. The decision realigns the immunity regime for IOs with that for foreign states, which leaves the opportunity to sue organisations such as the International Finance Corporation (IFC) when they engage in commercial activities. In a flare of enthusiasm among academics and (human rights) activists, the decision was immediately granted a landmark​ status and marked as a turning point in the long history of impunity for social, ecological and human harm caused by the activities of IOs. This Doing Business Right Talk ​will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of IOs, and international financial institutions in particular. The most immediate effect, in that sense, might not be located on the avenue of adjudication, but in the various accountability mechanisms that have been created within IOs themselves.


Dimitri van den Meerssche is a researcher in the Dispute Settlement and Adjudication strand at the T.M.C. Asser Instituut. His research reflects on the law of international organisations, international legal practices and technologies of global governance. This work is inspired by insights from science and technology studies, performativity theory and actor-network theory. Dimitri is currently finalising his doctoral dissertation at the European University Institute, which he expects to defend in winter 2019. His dissertation is entitled “The World Bank’s Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In the context of this dissertation, Dimitri has worked for three months at the World Bank Legal Vice-Presidency and spent one semester as visiting doctoral researcher at the London School of Economics.


When: Wednesday 24 April 2019 at 16:00

Where: Asser Institute in The Hague

Register Here

New Event! Towards Criminal Liability of Corporations for Human Rights Violations: The Lundin Case in Sweden - 23 May - Asser Institute

This autumn, two oil industry executives may be indicted in Sweden for aiding and abetting international crimes in Sudan. Furthermore, the public prosecutor will also likely seek forfeiture of $400 million from their company, Lundin Petroleum, reflecting the benefits derived from its Sudanese operations. The case follows the 2018 French indictment of LafargeHolcim for alleged crimes committed in Syria, showing that corporate liability for international crimes is gaining traction, before European courts at least.

This event aims to discuss the Lundin case, which has the potential of becoming a landmark trial because of the novelty and complexity of the legal issues that the court will have to decide. In particular, with regard to the assessment of the individual criminal liability of the executives of Lundin, the determination of the applicable standards of proof, the question whether a lack of due diligence is sufficient for a finding of guilt, and the limits and overlap of individual criminal liability of corporate directors on the one hand and corporate criminal liability of organisations on the other.

The event will feature three speakers, who will be presenting the various dimensions of the case and will put it into the more general context of the current legal developments with regard to criminal liability of corporations (and their executives) for human rights violations:

  • Egbert Wesselink will provide an introduction to Sudan’s oil war, describe Lundin’s role in it, and examine the human rights responsibilities of the company and its shareholders.
  • Dr. Mark Taylor will discuss how the Lundin case sits in global developments regarding the criminal liability of corporations for human rights abuses in the context of conflicts.
  • Miriam Ingeson will give a Swedish perspective to the legal framework of the case and analyse the legal issues that it raises at the intersection between national and international law.

The speakers:

  • Egbert Wesselink serves as Senior Advisor in PAX, the Dutch peace movement, where he is responsible for the programme on Natural Resources, Conflict and Human Rights, that focusses on the impact of international enterprises on the rights and interests of communities, notably in Sudan, South Sudan, DRC and Colombia. He represents PAX in several multi-stakeholder initiatives, including the Voluntary Principles on Security and Human Rights in an effort to increase the impact of emerging international guidelines, and advises various enterprises.
  • Dr. Mark Taylor is a Postdoctoral Fellow, Department of Private Law, University of Oslo and presently a Visiting Fellow at the Amsterdam Center for International Law, University of Amsterdam. Mark writes on legal and policy frameworks applicable to responsible business and will publish the book “War Economies and International Law: Regulating the Economic Activity of Armed Conflict” (based on his PhD thesis) with Cambridge University Press. Mark is an advisor to various initiatives in the field of responsible business and is a member of the Norwegian Ethics Information Commission (2018-2019), a government commission which is considering a proposed law on human rights information in the global value chains of Norwegian business.
  • Miriam Ingeson is a PhD candidate at Uppsala University, Sweden.  Her research project explores corporate criminal liability in international criminal law, and the intersection of domestic criminal law and public international law. She has previously held positions with the Swedish Prosecution Authority, the Folke Bernadotte Academy and the Swedish Ministry of Justice.

The moderator:

  • Dr. Antoine Duval is Senior Researcher at the Asser Institute and the coordinator of the Doing Business Right project.

For some background material on the case and its wider context, see www.unpaiddebt.orgwww.lundinhistoryinsudan.com.

More information and registration Here!