Amnesty International and the Business & Human Rights Resource Centre have produced an important intervention in the contemporary debates about the nature and scope of corporate obligation with respect to human rights. That work, Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse (Amnesty International and BHRRC, 4 September 2017) (also for press release and link here), provides an excellent account of the current efforts to develop a coherent system for the legalization of the transnational human rights obligations of enterprises within states. It does a masterful job of weaving together a series of national efforts into a plan for coordinated multilateral policy that may well foreshadow the shape and approach of what is likely to be the draft Treaty for Business and Human Rights. In that respect to approves the sort of conceptual coherence that is necessary should any treaty effort have any hope of even limited success (e.g., "Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights," North Carolina Journal of International Law 42(2): 417-504 (2016).)
This post includes the Table of Contents, Forward and Background of Creating a paradigm shif; along with my brief comments.
There is a great war within the rarefied spaces inhabited by those mighty organs of state, of business and of the aristocracies of the non-governmental sector over the soul of the narrative of bodies corporate. On the one hand one has an ever more deeply held notion of corporate personality grounded in the state and in the notion of institutional autonomy for aggregations of capital, of people, or of religious and political communities (e.g., here). On the other one increasingly encounters a rigid hierarchy of bodies corporate around a subservience to transnational legalization built on sometimes deeply contested notions of human rights. For one group, corporations are people (e.g., here); for the other even states are obliged to serve as the intermediary of the international order (e.g., here).
This is a war that commenced with the development of the modern framework for global trade and serves as a convergence point for a number of contradictions of the current societal, legal, political and economic orders (e.g., here). At the same time they are predicated on a Western approach to legality, and to the nature of the relationship between state, enterprise, people and society that sometimes do not accord with the lived realities of other cultures and other systems (and therefore which are judged inferior in a sort of modernized 19th century "civilized family of states" sort of way).
Amnesty International , and to some extent though in very different ways the Business and Human Rights Resource Centre, have long been long and honorably on the front lines of this war for the "soul" of legalized orders among bodies corporate in a universe that continues to distinguish between public and private, between the political, the moral, the religious and the economic--even as the reality of that increasingly ancient order fades into the fabric of historical narrative memory. Yet they also provides a useful reminder of the power of the ancient order. To that end, Amnesty and BHRRC have produced an important catalogue of the rifts between the contemporary camps in the struggle for the formation of the emerging global legal-societal order. The title of that effort underlines its futility: Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse (Amnesty International and BHRRC, 4 September 2017). It represents important critical thinking by important and influential participants in the current debates about human rights, enterprises, national and international law in the ordering and management of human communities.
This is not to suggest that these efforts are "wrong"; it is too late in the day to clothe political principle in moral terms. It is merely to suggest that the emerging structures of global production make these efforts--directed at and through states--as increasingly and maddeningly ineffective. And yet the timing of this report may suggest its real target--to influence the structures and approaches of the project of international or multilateral legalization through the construction of a global Treaty for Business and Human Rights (e.g. here).
Consider the Table of Contents as a road map to treaty making. The focus highlights the great conceptual gulfs that separate the structures of enterprise law (the law of the regulation of economic institutions and their bodies corporate) from those of the structures of human rights law (the law of the protection of human dignity against the depredations of bodies corporate whatever their character). Most of these rifts are well known and the nature of resistance and proposed means of overcoming the rift well discussed in the literature that blossomed during the first two decades of this century. These include (1) parent or controlling company liability (pp. 5-10); (2) forum non conveniens (as a method of avoiding jurisdiction by national courts home to apex multinational enterprises) (pp. 11-13); (3) disclosure regimes and transparency initiatives (pp. 14-18); and (4) access to information an discovery rules (pp. 19-20).
To no one's surprise, it is not uncommon among those deeply within the paradigmatic narrative of global human rights to aggressive adopt the narrative of international legalization and human rights--but operationalized through compliant states. There is a willingness to conceded the primacy of international space as the space for law making, but there is also an economy of implementation through the resort to states (now effectively superseded as autonomous centers of democratic legislation-legalization) as the mechanisms for implementation of international law. Of course there is irony here as well. Just as human rights NGOs tend to stand with those (many) who would see the 19th century complex of norms that make up classical economic law upended in favor of international responsibility based human rights privileging structures, so they would see the state transformed from apex body corporate to a mechanism for the implementation of law the power for which has been centralized somewhere in international space. None of this is wrong--but all is, as Amnesty itself suggests, profoundly transformative. Yet, what these actors appear to mean by paradigm shift is the abandonment of the paradigm of the legal organization of economic bodies corporate and the preservation, intact, of its own vision of the human rights paradigm under which it operates. That is not paradigm shifting but rather a call for victory of one of two seemingly opposed narratives that touch on the operation of the economic sector, both now well worn paradigms.
AI and BHRRC's efforts ought to be welcome by both the international human rights community and the global business and economics community as well. It ought to make for required reading among national public officials as well. The human rights community has been working without pause to identify and seek solution to problems that arise as a consequences of the application of their own normative ideological order. Business and the community of states have yet top meet this challenge on its own terms. And there are approaches that can be taken and positions defended, from within the normative ideological order of enterprises and states. Mere opposition is no longer enough. At some point the economic and national orders will have to meet the challenge so nicely posed by Amnesty, or concede the field.
How might that challenge be met by states and enterprises? Here are some brief and quite preliminary suggestions:
1. Do what Creating a paradigm shift has failed to try--admit the value and importance of the conceptual framework and ideologies of enterprises and of state autonomy Enterprises, and enterprise law, especially can concede the importance of the fundamental normative principles of the human rights and public law communities without harm to its fundamental ordering principles. There is a place for human rights within conventional and deeply rooted principles of contemporary legalized and societally driven economic enterprises. Amnesty's failure to recognize the importance and logic of conventional economic organization--of the spirit and form of corporate and other enterprise law is its greatest weakness, one driven by the necessary myopia of its own ideological foundations.
2. Embed human rights sensibilities, principles and norms within conventional corporate and enterprise law. Core enterprise law is in its essence human rights positive in ways that Creating a paradigm shift: disregard. An example--the basic principle of openness--that is, the principle that the protections of corporate law are available to all (at least in the United States) fosters not merely risk taking (though asset partitioning principles so anathema to Creating a paradigm shift), it also makes it possible for the poor, those who wold otherwise be incapable of taking business risk, to use the corporate form to better their circumstances. Corporate law, then, serves as a means of economic justice and development. It reduces the ability of the rich and powerful--of entrenched classes of the wealthy--to hoard economic power for themselves. Clearly this aspect of corporate law can be improved. But to disregard the value positive effects of corporate law, in its own right, distorts the utility of the device.
3. The legalization of corporate law permits even poor families with localized business to better deploy law in the protection of their assets. It would be as human rights positive to enhance the essential character of corporate law as a shield to protect individuals who are exploited down the production chain, than to strip these individuals of that protection in the vain hope that by up streaming liability it can provide effective protection downstream in locations sometimes far from the centers of power that appear so attractive to the global human right as community.
4. Corporate power at the lowest levels of global production builds civil society and adds another non-state sector voice. This is a critical human rights related element that tends to be given short shrift in efforts to tame apex corporations. Yet the process of vertical integration at th heart of many of the proposals will result in an odd consequence in the rush toward shifting paradigms--it may well contribute to the strengthening of clvi society within the home states of apex enterprises but shrivel business as an effective element of civil society in host states. The result is that economic stakeholding, as an effective matter, will (like economic power) flow out of developing states and into developed ones.
5. The process of the governmentalization of apex corporations can, at its limit pose a threat to the integrity of states. Clearly such a threat is less likely for the home states of apex multinationals. But as one saw in the context of the response to the Rana Plaza factory building collapse, apex multinationals along with the governments of these enterprises' home states substantially displaced Bangladesh and its indigenous institutions int he internationalized efforts to "solve" the local problem. The limitations inherent in principles of economic lefgal ordering tend to serve as a break on this process, and thus may be laced with human rights positive values that ought not to be ignored.
6. Lastly, for states, the governmentalization of the private sector tears away at a core function of States--their ability to serve as a space within which a political community can share the costs of communal protections and of the institutions that ought to serve community interests. Corporate autonomy, and the asset partitioning quality of contractual relationships in commerce and production are meant to better align state (as regulator) with enterprise (as institution operating within state territory). That relationship might better serve as the basis for aligning human rights with enterprise operation in local context.
7. What does this mean for the paradigm shift advocated in Creating a paradigm shift.There are ideas in the report that are worth serious consideration as elements of ongoing development of corporate and business law principles. Among the most useful might be the continued movement toward evolution of the duty of care and the duty to monitor. Yet that duty--however augmented by human rights considerations--must bump up against the fundamental principle of institutional autonomy and asset partitioning. Likewise, the reasonable steps defense might be more usefully considered--but the analysis might well have to incorporate quite distinct thresholds depending on the relationship of the specific legally constituted enterprise to the harm. The duty to generate critical information may require sensitivity to the constitutional orders of different states, some of which (like that of the United States) may constrain its development. The forum non conveniens proposals may have some merit--but the notion of overriding rather than significant consideration standards might merit further thought. On the other hand, "automatic liability standards", "presumptions of liability" and "choice of law" approaches may require more justification and a greater sensitivity both to the sovereign authority of public bodies corporate and to the preservation of systems for the constitution of autonomous non state actors. This is particularly important for non state sector organizations like Amnesty. There is the barest difference between the efforts to disregard the corporate personality of economic actors and the principle that non state organizations--like Amnesty--might also be treated the same way. Profit and shareholder primacy are hardly dispositive categorical distinctions that permit treating the corporate personality of Amnesty differently from that of Gap. Inc. Most importantly, the paradigm shift sought in the report might be easier to achieve if the language of enterprise and human rights were aligned. Human rights ought to incorporate the language of business (risk, etc.) in their own calculus; business must embed the principles of human rights within their accounting and risk assessment parameters. In the absence of a unifying language, conflict rather than paradigm shift will continue to be the order of the day.
8. Absent from much of the discussion is the state. To the extent that the stater appears at all, it is a passive body, meant to be receptive to the inbound flows of transnational norm making in which the non state sector has a significant influence. Ought the state to be treated as a receptacle for lawmaking developed by collective international bodies? Yet this is high irony. The project of legalization is itself almost entirely dependent on the state--and not just as a passive body. The state must, by invoking its democratic machinery, enact and implement law in accordance with its constitutional and political traditions. These seem to be wiped away. That presumption cannot but weaken proposals of this sort. There is a human rights elements to the protection of the rights of states to invoke their own autonomous civil and political systems free from the interference of others. And human rights is no exception. Absent the construction of systems of jus cogens in this sector, the consequence of any legalization project is its dependence on the state, and the acknowledgement that this dependence is also tinged with human rights concerns. Thus the subtextual message in the report--the possibility of legalization cram downs by focusing on changing the legal systems of apex states and then coercing developing states to conform, though a well used tactic of collectives like the G20 (see, e.g. here).
These thoughts are offered with the usual caveats--caveats equally applicable perhaps to the suggestions in Creating a paradigm shift. One ought to approach paradigm shifts with great humility. Democratic theory suggests that leadership of the sort exercised by non state organization, enterprises and even states, that are not exercised with a substantial connection to popular sentiments, and to their customs, traditions and practices, may suffer from the sort of disconnection that will produce resistance (if the initiative is powerful enough) or irrelevance.
How might that challenge be met by states and enterprises? Here are some brief and quite preliminary suggestions:
1. Do what Creating a paradigm shift has failed to try--admit the value and importance of the conceptual framework and ideologies of enterprises and of state autonomy Enterprises, and enterprise law, especially can concede the importance of the fundamental normative principles of the human rights and public law communities without harm to its fundamental ordering principles. There is a place for human rights within conventional and deeply rooted principles of contemporary legalized and societally driven economic enterprises. Amnesty's failure to recognize the importance and logic of conventional economic organization--of the spirit and form of corporate and other enterprise law is its greatest weakness, one driven by the necessary myopia of its own ideological foundations.
2. Embed human rights sensibilities, principles and norms within conventional corporate and enterprise law. Core enterprise law is in its essence human rights positive in ways that Creating a paradigm shift: disregard. An example--the basic principle of openness--that is, the principle that the protections of corporate law are available to all (at least in the United States) fosters not merely risk taking (though asset partitioning principles so anathema to Creating a paradigm shift), it also makes it possible for the poor, those who wold otherwise be incapable of taking business risk, to use the corporate form to better their circumstances. Corporate law, then, serves as a means of economic justice and development. It reduces the ability of the rich and powerful--of entrenched classes of the wealthy--to hoard economic power for themselves. Clearly this aspect of corporate law can be improved. But to disregard the value positive effects of corporate law, in its own right, distorts the utility of the device.
3. The legalization of corporate law permits even poor families with localized business to better deploy law in the protection of their assets. It would be as human rights positive to enhance the essential character of corporate law as a shield to protect individuals who are exploited down the production chain, than to strip these individuals of that protection in the vain hope that by up streaming liability it can provide effective protection downstream in locations sometimes far from the centers of power that appear so attractive to the global human right as community.
4. Corporate power at the lowest levels of global production builds civil society and adds another non-state sector voice. This is a critical human rights related element that tends to be given short shrift in efforts to tame apex corporations. Yet the process of vertical integration at th heart of many of the proposals will result in an odd consequence in the rush toward shifting paradigms--it may well contribute to the strengthening of clvi society within the home states of apex enterprises but shrivel business as an effective element of civil society in host states. The result is that economic stakeholding, as an effective matter, will (like economic power) flow out of developing states and into developed ones.
5. The process of the governmentalization of apex corporations can, at its limit pose a threat to the integrity of states. Clearly such a threat is less likely for the home states of apex multinationals. But as one saw in the context of the response to the Rana Plaza factory building collapse, apex multinationals along with the governments of these enterprises' home states substantially displaced Bangladesh and its indigenous institutions int he internationalized efforts to "solve" the local problem. The limitations inherent in principles of economic lefgal ordering tend to serve as a break on this process, and thus may be laced with human rights positive values that ought not to be ignored.
6. Lastly, for states, the governmentalization of the private sector tears away at a core function of States--their ability to serve as a space within which a political community can share the costs of communal protections and of the institutions that ought to serve community interests. Corporate autonomy, and the asset partitioning quality of contractual relationships in commerce and production are meant to better align state (as regulator) with enterprise (as institution operating within state territory). That relationship might better serve as the basis for aligning human rights with enterprise operation in local context.
7. What does this mean for the paradigm shift advocated in Creating a paradigm shift.There are ideas in the report that are worth serious consideration as elements of ongoing development of corporate and business law principles. Among the most useful might be the continued movement toward evolution of the duty of care and the duty to monitor. Yet that duty--however augmented by human rights considerations--must bump up against the fundamental principle of institutional autonomy and asset partitioning. Likewise, the reasonable steps defense might be more usefully considered--but the analysis might well have to incorporate quite distinct thresholds depending on the relationship of the specific legally constituted enterprise to the harm. The duty to generate critical information may require sensitivity to the constitutional orders of different states, some of which (like that of the United States) may constrain its development. The forum non conveniens proposals may have some merit--but the notion of overriding rather than significant consideration standards might merit further thought. On the other hand, "automatic liability standards", "presumptions of liability" and "choice of law" approaches may require more justification and a greater sensitivity both to the sovereign authority of public bodies corporate and to the preservation of systems for the constitution of autonomous non state actors. This is particularly important for non state sector organizations like Amnesty. There is the barest difference between the efforts to disregard the corporate personality of economic actors and the principle that non state organizations--like Amnesty--might also be treated the same way. Profit and shareholder primacy are hardly dispositive categorical distinctions that permit treating the corporate personality of Amnesty differently from that of Gap. Inc. Most importantly, the paradigm shift sought in the report might be easier to achieve if the language of enterprise and human rights were aligned. Human rights ought to incorporate the language of business (risk, etc.) in their own calculus; business must embed the principles of human rights within their accounting and risk assessment parameters. In the absence of a unifying language, conflict rather than paradigm shift will continue to be the order of the day.
8. Absent from much of the discussion is the state. To the extent that the stater appears at all, it is a passive body, meant to be receptive to the inbound flows of transnational norm making in which the non state sector has a significant influence. Ought the state to be treated as a receptacle for lawmaking developed by collective international bodies? Yet this is high irony. The project of legalization is itself almost entirely dependent on the state--and not just as a passive body. The state must, by invoking its democratic machinery, enact and implement law in accordance with its constitutional and political traditions. These seem to be wiped away. That presumption cannot but weaken proposals of this sort. There is a human rights elements to the protection of the rights of states to invoke their own autonomous civil and political systems free from the interference of others. And human rights is no exception. Absent the construction of systems of jus cogens in this sector, the consequence of any legalization project is its dependence on the state, and the acknowledgement that this dependence is also tinged with human rights concerns. Thus the subtextual message in the report--the possibility of legalization cram downs by focusing on changing the legal systems of apex states and then coercing developing states to conform, though a well used tactic of collectives like the G20 (see, e.g. here).
These thoughts are offered with the usual caveats--caveats equally applicable perhaps to the suggestions in Creating a paradigm shift. One ought to approach paradigm shifts with great humility. Democratic theory suggests that leadership of the sort exercised by non state organization, enterprises and even states, that are not exercised with a substantial connection to popular sentiments, and to their customs, traditions and practices, may suffer from the sort of disconnection that will produce resistance (if the initiative is powerful enough) or irrelevance.
__________
Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse Amnesty International (4 September 2017)
Foreword
In 2014, Amnesty International published Injustice Incorporated: Corporate abuses and the human right to remedy (Injustice Incorporated) which outlined key challenges that victims face in accessing legal remedies.1 Based on four emblematic case studies, the book examined three critical barriers to remedy in cases of human rights abuses involving multinational companies and advanced a number of key recommendations for legal and policy change. The barriers and proposed solutions highlighted are:
Legal restrictions resulting from the corporate form: The difficulties of holding parent companies legally accountable for abuses caused by their subsidiaries’ operations as a result of the “separate legal personality” (corporate veil) doctrine.2 The proposal advanced in Injustice Incorporated is to establish through legislation an express parent company duty of care, and to reverse the burden of proof in certain circumstances.
Jurisdictional hurdles resulting from the use of forum non conveniens: The risk for foreign claimants that their legal claim in home states such as Canada, the USA and Australia is rejected on forum non conveniens grounds. The proposal advanced in Injustice Incorporated is to eliminate this doctrine or reformulate the criteria for its application in cases of alleged corporate human rights abuse.
Lack of access to essential information: The lack of access to human rights-relevant information, including evidence of detrimental impacts of companies’ activities, which undermines the ability of affected individuals and communities to build a robust legal claim. Proposals advanced in Injustice Incorporated include making the disclosure of certain critical information mandatory and reforming civil procedure rules on disclosure.
As a follow up to this report, Amnesty International and Business & Human Rights Resource Centre held an expert workshop on remedy for corporate human rights abuses (corporate abuses) in London in December 2015. The objective of this meeting was to debate the proposals made in Injustice Incorporated and delineate further recommendations for legal and policy reform.3 The two organizations also commissioned expert papers that discuss and elaborate on the proposals in Injustice Incorporated. These are included in an Annex at the end of this briefing.4
Building from this expert input as well as further research and analysis, including an assessment of legal developments over the last two years, this briefing puts forward a number of key legal proposals that aim to eliminate or mitigate the effects of the three barriers to remedy highlighted above. The target audience includes legal experts, legislators, national, regional and international policy-makers and civil society actors working in the field of business and human rights.
A number of significant legislative initiatives in the last two years point to the beginning of a paradigm shift. Those driving legal reform must keep this momentum going and capitalise on the various legislative advances by tailoring proposals to their particular legal system, even if change is achieved through incremental steps over time. The aim of this publication is to highlight those legislative developments and fuel further legislative solutions to improve access to remedy for corporate abuses.
Background
A persistent problem
While companies can be a force for good, many are implicated in human rights abuses in different contexts around the world. When companies cause or contribute to human rights abuses, adequate accountability and redress rarely occur. This is especially so when abuses are committed across borders. Systems of accountability that operate predominantly within state borders have not kept pace with the global nature of corporate operations.
Victims of corporate abuse face serious obstacles to obtaining a legal remedy both in the jurisdiction where the harm occurred (“host state”) as well as where multinational companies are headquartered (“home state”). When multinational companies commit human right abuses in host countries, host state courts often remain the preferred forum for pursuing legal redress. However, for various reasons which include a lack of due process, political interference, mistrust of the courts or lack of affordable legal assistance, a claim in the host state may not be a viable option. In these instances, legal options in the home state also need to be leveraged to ensure justice.
It is now well known that human rights claims in home states are also affected by many barriers. These barriers have been extensively documented over the past few years. As a result, our collective understanding of the existing challenges to accessing remedy in cases of human rights abuses involving companies has grown considerably.
Instances of corporate abuse often reveal that legal changes are needed in relation to the specific case. However, legal change is also needed in relation to systemic issues such as parent company liability, duty of care and human rights due diligence.
Under international human rights law, states have a duty to prevent and redress human rights abuses by companies, including when companies operate across borders. While the UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in 2011, were a positive development and recognised these legal duties, six years on meaningful state enforcement remains limited.
An agenda for legal reform
In the last two years, some positive developments in the areas of parent company liability, mandatory human rights due diligence, access to home state courts and disclosure of information have occurred. Importantly, some of these efforts have crystallised into hard law.
Among the most important legal developments are a law passed early this year in France that imposes a “duty of vigilance” on certain large French companies to prevent environmental and human rights harm caused by their subsidiaries and other business relationships.5 This is the first law of its kind; it expressly requires companies across sectors to design, implement and account for the measures put in place to identify, prevent and address human rights risks and impacts in their global operations. Crucially, it facilitates access to remedy by establishing that human rights harm resulting from a lack of vigilance as prescribed by the law can be invoked before a French court to seek compensation (see more on this law in section I on Parent or Controlling Company Liability).
In relation to access to information, the EU adopted a Directive on the disclosure of non-financial information in 2015 which includes a requirement that target companies describe their human rights policy, due diligence processes, principal risks to human rights and management of those risks.6 Also in 2015, the UK adopted the UK Modern Slavery Act which requires that target companies carrying out business in the UK report on steps taken to ensure that slavery and trafficking are not taking place in their own businesses or supply chains7 (see more on these two developments in section III on Mandatory Collection and Disclosure of Information).
These are positive developments that demonstrate that legal measures to improve accountability and redress for corporate abuse are possible.8 However, despite these important advancements, legislative initiatives continue to be rare.
When it comes to legal claims for serious human rights abuses, parent companies can still hide behind the corporate veil to deflect liability. Forum non conveniens is still commonly invoked and applied in common law jurisdictions such as Canada and the USA, prolonging lawsuits and often resulting in dismissals. Very few companies today disclose meaningful information regarding their actual and potential human rights risks and impacts. It is evident that there still is a long way to go.
A substantial paradigm shift is needed in the way societies assign legal responsibility within corporate groups. This paradigm shift is underscored by a recognition that the entity that creates risks to society through its own operations or the operations of a company or group of companies it has an ability to control, and that benefits financially from these operations, must also bear responsibility for any negative consequences.
Courts have a critical role to play in the realisation of the right to remedy. As state authority, they are bound by international human rights law. As more and more claims of alleged corporate abuse are brought to their attention, they must live up to their human rights obligations and ensure their decisions align with, facilitate, and do not restrict, the human right to remedy.
Finally, disclosure of human rights-relevant information, whether held by state authorities or private actors, must become the norm and not continue to be the exception.
The following recommendations by Amnesty International and Business & Human Rights Resource Centre address these persistent problems by suggesting ways of attributing liability to parent companies for abuses committed by subsidiaries and other entities within the group that the parent companies have an ability to control; recommending changes in the rules that govern forum non conveniens; and advancing legal proposals to improve access to information by rights-holders affected by corporate activities.
NOTES:
1 Amnesty International, Injustice incorporated: Corporate abuses and the human right to remedy (Index: POL30/001/2014). Available at: https://www.amnesty.org/en/documents/pol30/001/2014/en/
2 In Injustice Incorporated, as well as in this briefing, “parent company” is understood broadly to include not only companies with decision-making power that hold all or a majority of the shares in another, but also companies that, for whatever reason, exercise effective control over the activities of another member of the corporate group. For this reason, this briefing often uses the terms “controlling” or “controlled” jointly with, or instead of, “parent” or “subsidiary” respectively, to denote that broader understanding.
3 Participants included practicing lawyers, academics and advocates from a variety of countries and backgrounds with direct experience on these issues.
4 While there is a broad convergence of opinion, the expert papers represent the views of their authors while this briefing reflects the views and recommendations of Amnesty International and Business & Human Rights Resource Centre.
5 Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre Available at: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000034290626&dateTexte=&categorieLien=id For more information and articles in English about this law see: https://business-humanrights.org/en/france-natl-assembly-adopts-law-imposing-due-diligence-on-multinationals-to-prevent- serious-human-rights-abuses-in-their-supply-chains
6 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32014L0095 The European Commission has recently finalised guidelines to companies on the implementation of the Directive which are available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52017XC0705(01)
7 Companies making £36 million or more annually are required to report. See: http://www.legislation.gov.uk/ukpga/2015/30/section/54/enacted.
8 Significant changes have also occurred at the international level. Influential bodies such as the UN Committee on Economic, Social and Cultural Rights and the Council of Europe have also placed the spotlight on access to remedy, disclosure and the responsibilities of parent companies, contributing to a greater understanding of the scope and implications of state duties in these areas. See: Committee on Economic, Social and Cultural Rights, General Comment 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, UN Doc. E/C.12/GC/24, 10 August 2017, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E/C.12/GC/24&Lang=en (General Comment 24); and Recommendation CM/Rec(2016)3 of the Committee of Ministers to member states on human rights and business - Adopted by the Committee of Ministers of the Council of Europe on 2 March 2016, https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805c1ad4 (Council of Europe Recommendation on Human Rights and Business).
Foreword ........................................................................................................................ 2Background ......................................................................................................................................... 3A persistent problem....................................................................................................................... 3
An agenda for legal reform ............................................................................................................ 3
Recommendations by Amnesty International and Business & Human Rights Resource Centre ............. 5
I.Parent or Controlling Company Liability .................................................................. 5Outstanding challenges .................................................................................................................. 51. A duty of care or “duty to prevent” harm established by law .................................................... 5
2.Presumption of liability .............................................................................................................. 7
3. “Reasonable steps” as a defence................................................................................................ 7
4. An automatic liability for abuses committed by subsidiaries .................................................... 8
5. Using regulatory bodies to mandate human rights due diligence.............................................. 9
5. Flexibility to use the more favourable law in transnational litigation....................................... 10
II. Forum non conveniens............................................................................................ 11Outstanding Challenges ................................................................................................................ 11
- The exceptional character of forum non conveniens ..................................................... 11
- Human rights as an overriding consideration .................................................................... 12
III. Mandatory Collection and Disclosure of Information.......................................... 14Outstanding challenges ................................................................................................................. 14
- A duty to generate critical information ............................................................................. 14
- Disclosure of information as part of due diligence ........................................................... 15
- Integrating community-held information in impact assessments....................................... 16
- Ensuring freedom of information laws are effective in practice ....................................... 16
- Rules against confidentiality of public interest information............................................... 17
IV. Access to Information and Discovery................................................................... 19
Outstanding Challenges .......................................................................................... 19
- Enacting broad discovery procedures ................................................................................ 19
- Strengthening existing discovery procedures .................................................................... 19
- Complementarity with broader reforms ............................................................................. 20
Annex – Expert papers .............................................................................................. 21
Fictitious Separation, Real Injustice: Why and How to Tame the Twin Principles of Corporate Law? . 21An Inconvenient (But Unavoidable) Doctrine: Reforming the Doctrine of forum non conveniens in Transnational Human Rights Cases Involving Corporate Defendants...... 29Meaningful Access to Information in Business and Human Rights Cases............................................... 34Access to Information through Discovery in Business and Human Rights Claims ................................. 45Corporate-State Nexus: The Political Element Hindering Victims’ Access to Justice ............................. 51
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