Part 4 Reflections on Völkerrechtsblog Online Symposium: "Framing Business & Human Rights?": Lucas Roorda, "Caught between Principles and Perfectionism: Private International Law in the Proposed Binding Instrument on Business and Human Rights"

 

It is with great delight that I pass along the announcement of an exciting new Online Symposium. It is  hosted by Völkerrechtsblog and brilliantly co-organized by Justine Batura (Völkerrechtsblog), Anna Sophia Tiedeke (Völkerrechtsblog) and Michael Riegner (University of Erfurt; co-founder of the Völkerrechtsblog), who will feature as guest editor of the Symposium. The Symposium Summary nicely captures the spirit of the event:

With a view to regulating business in the field of human rights, an Open-Ended Intergovernmental Working Group (OEIGWG) has been negotiating an international binding treaty in business and human rights (BHR) since 2014. Confounding the dichotomy of hard and soft law approaches to BHR, the Biden Administration recently expressed openness to a legally binding framework agreement that would build on the UNGPs. Framework agreements are a type of treaty, that establish key objectives and a system of governance but leave details to be determined in the future by an agreed-on mechanism. Perceived by some as a distraction from existing efforts to create a binding treaty in the field, others consider the treaty design choice for a framework agreement as offering a promising and realistic route. In any event, the joining of the US delegation to the OEIGWG has (re-)fuelled long smouldering discussions about the prospects of success of the OEIGWG endeavour and the need to explore alternative avenues, such as opting for the treaty design of a framework agreement. With this symposium, we take a deep dive into exploring a framework convention as an alternative regulatory proposal and examine potentials and challenges from different angles. (Völkerrechtsblog, Symposium, Framing Human Rights? Introductory Note )

Throughout the week starting 20 June 2022, the co-editors will post written contributions on the homepage of the Symposium in the following order:

--Monday: Introduction by co-editors Justine Batura (Twitter: @JustineBatura), Anna Sophia Tiedeke & Michael Riegner (Twitter: @riegnerm)
--Monday, 1 pm: Giulia Botta
--Tuesday, 8 am: Jonathan Klaaren (Twitter: @JonathanKlaaren)
--Tuesday, 1 pm: Lucas Roorda (Twitter: @LRoordaLaw)
--Wednesday, 8 am: Claire Methven O‘Brien (Twitter: @Claire_OB1)
--Wednesday, 1 pm: Tara Van Ho (Twitter: @TaraVanHo)
--Thursday, 8 am: Nils Grohmann
--Thursday, 1 pm: Flávia do Amaral Vieira (Twitter: @eiflavia)
--Friday, 8 am: Larry Catá Backer (Twitter: @BackerLarry)
--Friday, 1 pm: Concluding Interview with Claire Methven O'Brien (Twitter: @Claire_OB1) & Surya Deva (Twitter: @ProfSuryaDeva)

 I was delighted to have been invited to participate.  I will be posting the Symposium contributions here and will also contribute some brief reflections and engagement with each of the excellent and thought provoking contributions.

For this Part 4 we consider the wonderful essay: Lucas Roorda, Caught between Principles and Perfectionism: Private International Law in the Proposed Binding Instrument on Business and Human Rights, Völkerrechtsblog, 21.06.2022, doi: 10.17176/20220621-153023-0  which follows along with my brief reflections. 

 

 Other Essays and Reflections may be accessed here:

Part I Introduction 

Part 2 Giulia Botta 

Part 3 Jonathan Klaaren

Part 4 Lucas Roorda

Part 5 Claire Methven O'Brien 

Part 6 Tara van Ho

Part 7 Nils Grohmann

Part 8 Flávia do Amaral Vieira

Part 9 Larry Catá Backer

Part 10 Interview: Surya Deva and Claire Methven O'Brien

 

Caught between Principles and Perfectionism

Private International Law in the Proposed Binding Instrument on Business and Human Rights

21.06.2022

One of the driving forces behind the movement towards a legally binding instrument on business and human rights (BHR) has been the need for effective remedies for victims of corporate human rights abuses. While the obligation to provide remedies is primarily territorial, the recommendation that States identify and remove barriers to judicial remedies for legitimate claims also applies to transnational cases: where the alleged harms occurred outside the forum. There is a growing body of scholarship, reports and recommendations identifying the barriers faced by victims in such cases, which are often brought in the home States of the defendant multinational. These barriers range from jurisdictional limitations to disclosure rules to lack of financial resources. Corresponding State action to remove or lower these barriers has however been conspicuously lacking – judicial remedies are neither the subject of proposed action in most national action plans (NAPs) published so far, nor have there been legislative proposals that lower barriers to remedy in cross-border litigation.

It is arguably this lack of State action that has prompted the Open-Ended Intergovernmental Working Group (OEIGWG) drafting a BHR binding instrument to address several specific legal and practical barriers to judicial remedy and access to court, most of which are primarily relevant to litigation in home States. The current, Third Draft is the most detailed of the drafts published so far: article 8 first outlines general obligations to ensure victims can hold corporations liable in domestic courts for human rights abuses. Unusually for a human rights instrument, this is then followed by provisions that address specific areas of domestic private law and private international law: article 9 establishes mandatory grounds for adjudicative jurisdiction of domestic civil courts; article 10 addresses statutes of limitations; article 11 creates options for determining applicable law; and article 12 concerns obligations to provide mutual legal assistance. This post will argue that this rule-based approach aimed at harmonization may create more problems than it resolves; and a more principles-based agreement is first necessary before such detailed provisions can be agreed on.

Jurisdiction as an Example

Taking article 9 of the Third OEIWG Draft on adjudicative jurisdiction as an example, one can observe that this article mostly emulates the jurisdiction regime of the EU Brussels-Ibis Regulation. The Regulation partially harmonizes adjudicative jurisdiction in contractual and non-contractual liability cases in EU Member States. Article 9 copies both its mandatory character – jurisdiction ‘shall vest’ (article 9.1) – and reliance on domicile of the defendant as a principal ground for establishing adjudicative jurisdiction (article 9.1 (c)). Article 9.2 also reflects the Regulation by defining ‘domicile’ of legal persons as their place of incorporation, location of their central administration or principal place of business. Compared to the Second Draft, the Third Draft adds provisions that do not reflect the Brussel-Ibis Regulation: it includes the place where ‘principal assets’ are located in its definition of domicile (article 9.2 (b)), introduces a mandatory forum necessitatis (article 9.5) and most notably recognizes the domicile or nationality of the victim as a ground for adjudicative jurisdiction (article 9.1 (d)).

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Some of these changes will raise red flags for private international lawyers, especially for those familiar with European private international law. No legal system, certainly not in the EU, currently defines a legal person’s domicile based on the presence of assets alone – and the few States that recognize the presence of assets in the forum as a legitimate jurisdictional link at all, have over time significantly restricted this likely exorbitant ground. Nationality or domicile of the victim or plaintiff as a ground for adjudicative jurisdiction is certainly regarded as exorbitant by most States, as evidenced by its placement on the ‘black list’ of prohibited grounds in the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters of The Hague Conference on Private International Law.

One could moreover question the wisdom of emulating the Brussel-Ibis Regulation at all. The Regulation was not created to operate as a model jurisdictional regime for universal use; its purpose is to facilitate free circulation of judgments, in support of the EU internal market (Recital 4). The principle of mutual trust between EU Member States is fundamental to how it operates (Recital 26), and there is no such principle on a worldwide scale. It is also a product of the European civil law tradition: it emphasizes legal certainty through predictability and relies on codified, black letter law from which only limited exceptions are possible (Recital 15). That outlook is distinct from -for example- common law traditions of the UK and the US. These traditions emphasize individual due process and judicial discretion through the exercise of restrictive doctrines like forum non conveniens, which the Third OEIGWG Draft also rejects in article 7.3(d) and article 9.3.

Thus, the Third OEIGWG Draft tries to create a universal harmonized regime for adjudicative jurisdiction in a single article, based on one particular legal tradition. It is unlikely that (home) States from other traditions would agree with an instrument that contains such regime, especially as earlier attempts at this level of harmonization have failed. Indeed, negotiations on the aforementioned Draft Convention at the Hague Conference eventually collapsed due to the fundamental differences in outlook between the US and the EU. The variety of jurisdictional traditions that would be subject to article 9 is even wider, so the potential for disagreement even greater. And given the proposed deviations from the Brussels-Ibis regime, it is unlikely that even the EU would agree.

A Problem of Rules and Principles: Better Chances with a Framework Convention?

One could make similar observations on articles 9 to 12 of the Third OEIGWG Draft: they create self-contained ‘mini-regimes’ of private (international) law, and like the jurisdiction regime, these proposals are liable to evoke significant resistance. But rather than push for renegotiating the exact provisions, it is argued here that the entire approach to resolving barriers to remedy needs to be reconsidered, and approaching the instrument as a framework convention is a likelier road to success.

Recall that one of the main drivers of the treaty drafting process is the lack of home State action to remove barriers to access to judicial remedy, absent enforceable obligations. The drafters have thus far opted to solve this problem through a rule-based approach, prescribing and harmonizing how (home) States should remove these barriers. But this overlooks the fact that neither the UNGPs, nor other human rights instruments currently recognize or establish binding obligation for home States to provide judicial remedies for extraterritorial harms at all. Even General Comment 24 of the Committee on Economic, Social and Cultural Rights (CESCR), arguably one of the more progressive interpretations of human rights law as it pertains to business impacts, is careful not to state that the right to remedy creates obligations by other States than the State where the harm occurred.

In other words, the underlying question of why home States should consider adopting these rules is not resolved. There are however reasons to assume that home States increasingly accept that they can and should provide better access to (judicial) remedies: for example, the recent European Commission proposal for a Directive on Corporate Sustainability Due Diligence includes a civil liability provision that can be accessed by foreign victims (article 22 of the EC Proposal), and a number of European States have adopted domestic legislation with remedial provisions; these proposals for the most part do not directly change any rules of private international law, but indirectly lower barriers to judicial remedy by circumventing problems of jurisdiction and applicable law. A BHR binding instrument could more effectively capitalize on that emerging consensus and focus on establishing the principles, starting with the general obligation that home states shall endeavour to remove barriers to judicial remedy for victims with legitimate claims.

One may point out that even a legal obligation may not mean that home States will actually take action, so that simply establishing the principle would not be sufficient. This is why reframing the current draft as a framework convention may be a more viable way forward, as this takes the middle road between an overly general and an overly specific instrument. It could establish a foundational obligation as framed above, but with an explicit commitment to develop additional protocols or supplementary instruments addressing specific (procedural) barriers to remedy. This creates space to address their underlying legal frameworks in more detail, without making agreement on resolving one barrier contingent on agreement on another. When negotiating these protocols, there is further opportunity to integrate the recommendations of existing and ongoing BHR-specific initiatives such as the OHCHR Accountability and Remedy Project with these protocols, as well as the efforts of the Hague Conference on Private International Law. And lastly, even if States do not agree on any detailed protocols, the foundational obligation to remove barriers to remedy still stands, to which they can be held to account.

Reverting back to the principles first, and reserving development of specific rules for later is not without risk. As the International Committee of Jurists recently pointed out, the BHR treaty drafting process could lose its momentum if it has to restart from the beginning. Unwilling States could capitalize on the abandonment of specifics and try to water down potential obligations, committing only to the bare minimum. But the OEIGWG does not need to throw out all previous work: the current article 8 of the Third Draft is already a good starting point for an agreement on the core principle, and identification of barriers that should be addressed later. Moreover, the current approach gives States ample reasons not to agree with or even negotiate on the potential instrument, with a ‘free’ set of technical arguments to support their position. It is difficult to see how that would bring effective remedies any closer.

Cite as

Lucas Roorda, Caught between Principles and Perfectionism: Private International Law in the Proposed Binding Instrument on Business and Human Rights, Völkerrechtsblog, 21.06.2022, doi: 10.17176/20220621-153023-0.

Dr. Lucas Roorda is assistant professor at Utrecht University, department of International and European Law, and postdoctoral researcher at the Utrecht Centre for Accountability and Liability Law (Ucall).

 __________

Reflections on the  Völkerrechtsblog Symposium Essay,

Larry Catá Backer

1.This essay touches on effective remedy, one of the most important, and difficult, issues in the development of coherent norms, law, rules, practices and the like relating to the human rights effects of economic activity. Part of the problem,. of course, is that in the frenzy to build on the UNGPs it is often easy to lose sight of its basic and most profound contribution to remedy--the insight that remedy is the  final and ultimate fallback on a system the primary focus of which is meant to be built on mandatory (legal and markets based) measures of prevention and mitigation. Remedy, within the UNGP system, is effectively what remains when the system fails--post hoc and compensatory.  It also suggests that remedy assumes a double character: FIRST as a means of ensuring correction of failures of measures to prevent and mitigate adverse human rights effects of economic activity built into prevention and mitigation systems within enterprises and in state administrative and oversight apparatus; SECOND as a means of providing individuals (and sometimes collectives) with compensation for human rights harms which can be tied to actions of particular business entities. The first sort of remedy has an administrative character (civil and criminal penalties, injunction and mandamus), the second is built on the sensibilities of human rights torts (compensation, punitive damages where possible).  The essay notes that remedy in either sense has not managed to elicit much by way of effective measures; that is felt most acutely by individuals whose rights have been adversely affected, especially given the realities of rights vindication through judicial or quasi-judicial mechanisms. That failure, the essay notes, appears to motivate a number of specific measures in the 3rd Draft of the Treaty (arts. 8-12). But like the normative standards built into the Treaty, in thew words of the essay, "this rule-based approach aimed at harmonization may create more problems than it resolves; and a more principles-based agreement is first necessary before such detailed provisions can be agreed on." 

2. And yet, the failures the essay thoughtfully describes point to a larger issue--and a fatal one for the current shape of the normative treaty project--the way it attempts transformation through international law, but then fails in the effort. Put simply--in both its normative and remedial objectives, the treaty projects effectively transforms fundamental legal principles with respect to its subject, but also challenges more generally widely held national (and transnational) jurisprudential principles that would undermine or transform some of the basic fabric of contemporary jurisprudence. It does so without any apparent effort either to recognize the power of its spillover effects, or to more effectively align its jurisprudential objectives within a consequentially transformed legal and constitutional framework. More interesting still are the consequences for a number of international instruments that touch on core matters of trans-national process, which the treaty would challenge, undo, or reject. Key elements of these provisions are modeled on a European jurisdictional project--the Brussels-Ibis Regulation (2012). That may work well for the Europeans, but it is not clear that the same would apply elsewhere; and it is not clear that the Treaty overlay may not also require revisiting Brussels-Ibis. Whatever that effect, there is yet a more profound consequence which is nicely drawn out in the essay's discussion. First, in the language of the essay, "these changes will raise red flags for private international lawyers, especially for those familiar with European private international law;" and second, the essay well wonders about the "wisdom of emulating the Brussels-Ibis Regulation at all...Thus, the Third OEIGWG Draft tries to create a universal harmonized regime for adjudicative jurisdiction in a single article, based on one particular legal tradition." This is a problem that can be generalized throughout the draft--affecting everything from choice of law, to core principles of corporate, competition, tort, and constitutional principles that, though perhaps worthy as an ideal, produce a tremendous challenge for embedding these changes within complex systems of interlocking law. The Treaty draft, in effect, may be more consequential for the depth of its unintended consequences than it may be for the advances, in practice, of its conceptual normative project.  This in addition to the essay's suggestion that the creation of these mini regimes of private law will likely "evoke significant resistance."

3.  But can a framework approach work better? That is the difficult question at the heart of the essay. In a sense it might work better, if only because it avoids the issue posed by extensive but not comprehensive reform of the entirety of the legal structures of organized political society--because that is effectively, whether its proponents care to admit it or not, the (un)intended trajectory the Treaty Draft. Perhaps in the search for perfection the best one can hope for are structures of perfectibility--and such structures must be built, it seems, on the foundation of well managed margins of appreciation.  That effectively is the basis of a successful framework approach structure--as a system of well constrained and managed margins of appreciation with protocols built in to draw such margins more  and more closely together. The regulation of the human rights effects of business, indeed, might best be understood as eminently suitable for a platform governance structure, one that can best be structured through a framework approach.  The question, then, is the way that platforms might serve the remedial function (assuming its effective integration with the remedial element in prevention and mitigation strategies at the heart of the UNGP framework). Here one speaks of a space to interlink a distinct smart mix of regulatory authorities and measures, and in the process align and coordinate remedial structures,.

4. The search for perfection is a strong one in the West; it is even stronger among vanguards who believe they represent the leading social forces of organized society in any specific time and place (on the search for perfection here).  Yet those who seek perfection in the liberal democratic West might do well to recall that perfection inevitably is represented as points within a range of the plausible.  The more that elements of liberal democratic society seek to create a rigid fixed point of perfection within this range of the plausible the more likely it is that this point will become unattainable--and contested. Both work against advancing the ultimate objective of this exercise--the more robust embedding of human rights as a core value in economic activity, including relating to development, bio-diversity, sustainability, and climate change.  That does not mean that the search for perfection is a chimera--quite the reverse. Nonetheless, it ought to be the search for rather than the belief in the attainment of the object of perfection that  provides the great strength and vitality of liberal democracy.  That strength has been dissipated in the vanguard efforts to impose a foxed and rigid normative framework for the transformation of economic activity, including development, as a tool, as the instrument of, human rights. The fixity of the Treaty process suggests both its great strength--the belief in the fixity of the perfect within the narrow confines of the human rights effects of economic activity. But it also exposes its great weakness--the fixity of its perfection inevitably fails to align within the heterogeneity of the democratic and legal traditions of the many peoples that together constitute the liberal democratic order--and it ghosts the traditions of the great Marxist Leninist states. Perfectibility through the mechanisms of a framework instrument provides a more plausible approach to the eventual convergence of practice around standards. What the essay describes most astutely is the way that the Treaty process has produced a perfectly  round peg which it will find impossible to insert into existing and perfectly square holes. That great insight of this essay is well worth considering.