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The eleventh session of the OEIGWG took place from 20 to 24 October 2025 in room XVI of the Palais des Nations. Recordings of the discussions are available on UN Web TV. These sessions have been a marvelous experience in both the brilliance and tragedy of these sorts of exercises at a time of substantial change. In some respects the Treaty effort represents the accumulation of an extraordinary amount of good intentions and positive moral reasoning. It does represent a plausible application of the UN Guiding Principles for Business and Human Rights, though not the only one. Yet that choice is the issue; it suggests the fulfillment of a political desire that extends back to the 1970s, combining the essence of the now ancient New International Economic Order with the techno-bureaucratic legalism of the failed Norms project the taste for which might have reached its zenith just as COVID augured in a new age. But perhaps most tragic is the embrace of a retro approach that both celebrates a state system that is otherwise ideologically problematic onto which is delegated the duty to fulfill international legal obligations all the while rejecting the plausibility of private law and markets as a space for the generation of useful collective action. And of course the real tragedy is the quite naive view--taken as something like holy writ--the the best object for the regulation of system of economic production, and of the nexus of relationships within which they are organized, through a focus on one, but not all of its components. The regulation of multinational enterprises has always most usefully served a a metaphor, or better put as the avatar representing a complex polycentric system of organizing economic activity; it is to the regulation of that system and its relationships, rather than of one of the objects through which that system acquires its form and power, that will will eventually have to confront if what one wants to do is to privilege human rights (however defined) as a factor in the production of human undertakings. Perhaps it is time to stop focusing on avatars and instead confront what the avatar has come to represent.
But that is politics, a politics that, like other political projects before it, will be tested in the fires of negotiation of a final treaty text and then in the trench warfare of implementation within a system in which States can be compelled to a far less extent than the enterprises that are the object of all of this drafting.
And thus back to the work of the OEIGWG, now starting its second decade of work. These OEIGWG treaty drafting sessions have been quite marvelously reported by Linda Wood, who has been doing a remarkable job of both engaging with and chronicling this quite interesting process (see the most recent here, here and here). So I am again delighted to pass along this marvelous reporting from Linda Wood
It was an interesting and busy week at the 11th session of the LBI.
There were new States that attended and presented for the first time.
The draft report on the eleventh session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights is found here.
https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-transcorp/session11/igwg-11th-report.pdf
The OEIGWG Chair-Rapporteur 2026 Roadmap for the implementation of HRC Decision 56/116, including the intersessional thematic consultations towards the 12th session is here;
https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-transcorp/session11/igwg-11th-proposed-2026-roadmap.pdf
The updated draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises with States updated texts on Articles 12-24.
https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-transcorp/session11/igwg-11th-textual-proposals-lbi.pdf
The paper received 14 October 2025, Articles 4-11, was discussed at the LBI. However, States only gave general comments and wanted more time to consider this paper. It was agreed that all States and non-State stakeholders can make submissions by 1 February 2026. The contributions on the thirteen Chair-Rapporteur’s suggested redrafting of selected provisions of Articles 4 to 11, will be posted on the working group’s website.
* * *
The first intersessional thematic consultation, to be held in February 2026, will be focused on: Articles 12 to 24 of the Updated draft legally binding instrument, including on the textual proposals submitted by States during the eleventh session.
The second intersessional thematic consultation, to be held in April 2026, will be focused on: Article 1 (Definitions), 2 (Statement of purpose) and Preamble.
The third intersessional thematic consultation, to be held in June 2026, will be focused on: Art. 3 (Scope) and a general overview of the text and the way forward.
Building E at the Palais des Nations is undergoing renovations as part of the Strategic Heritage Plan (SHP). The usual rooms were not available. There are also the ongoing funding issues.
The room used for the 11th session of the OEIGWG was smaller and did not have the same capacity as the 10th session, in 2024. The numbers of people who wanted to attend, were limited and changes were made to the registration process. This resulted in some who wanted to attend, being unable to.
The joint statement on behalf of Change The Law Limited and The Responsible Contracting Project for 16.1., Implementation, was presented.
Links to recordings;
1st Meeting https://webtv.un.org/en/asset/k1u/k1ulns1or9
2nd Meeting https://webtv.un.org/en/asset/k1k/k1kb5l3uis
3rd meeting https://webtv.un.org/en/asset/k1b/k1baa85czq
4th meeting https://webtv.un.org/en/asset/k1z/k1zspjijyk
5th meeting https://webtv.un.org/en/asset/k1b/k1bo9mov3p
6th meeting https://webtv.un.org/en/asset/k14/k14bssvpqx
7th meeting https://webtv.un.org/en/asset/k1n/k1nnub555j
8th meeting https://webtv.un.org/en/asset/k19/k19fenjwhb
Meeting 24 October 2025 with states only, there is no recording available.
9th meeting https://webtv.un.org/en/asset/k1s/k1s5u0806u
As previously mentioned, I believe some states require the additional support that an NGO can help with. Please contact your Mission in Geneva to see if you can assist.
Links to the documents on the OEIGWG website follow below along with the I have attached the Chair Rapporteurs suggested redrafting of selected provisions (arts. 4 to 11) of the updated draft legally binding instrument.
Documents
* * *
OEIGWG Chair-Rapporteur suggested redrafting of selected provisions (Articles 4 to 11)
of the Updated draft legally binding instrument (LBI) to regulate, in international human
rights law, the activities of transnational corporations and other business enterprises,
discussed during the thematic inter-sessional consultations on (April–June 2025)
October 2025
This document is conceived as an annex to the summary report on the first, second and third
intersessional thematic consultations towards the 11th session of the Open-ended
Intergovernmental Working Group on transnational corporations and other business enterprises
with respect to human rights.
This document has been prepared by the Chair-Rapporteur of the OEIGWG with the assistance
of the legal experts of the OEIGWG, taking into account the “Methodology of the intersessional
thematic consultations towards the 11th session of the OEIGWG” circulated at the end of the 10th
regular session of the OEIGWG (December 2024), the development of the discussions during the
intersessional thematic consultations in 2025, and the announcement by the Chair-Rapporteur at
the end of the third thematic intersessional consultation.
The document includes: -the current text of the selected provision in the Updated draft Legally
Binding Instrument (LBI); -a background of the relevant selected provisions and the proposals
presented in relation to those provisions; -additional language that could be taken into
consideration, including with legal sources, as appropriate; -the objective of the suggested new
language for the selected provisions; and,
-the new suggested language (in blue colour) with
possible amendments aiming to reflect possible areas of convergence and/or possible solutions
to the divergences identified in the “Updated draft legally binding instrument with the textual
proposals submitted by States during the ninth and tenth session”, and during the intersessional
thematic consultations.
The redrafting of selected provisions was prepared taking into account all the comments and
suggestions from States and the rest of the stakeholders, building on the considerations outlined
above, and taking into account the potential benefits of further streamlining the text, while at the
same time ensuring that the substantive content of both articles is fully preserved and not
diminished or undermined, and bearing in mind that crosscutting issues such as definitions or
scope, will merit particular attention in the course of the discussions on Articles 1 and 3.
As reflected in the aforementioned Methodology, this document is thus presented by the Chair
under his sole responsibility, and the respective proposals with new suggested drafting language
included therein, will not have any legal status, and will not replace the “Updated draft legally
binding instrument with the textual proposals submitted by States during the ninth and tenth
sessions” as the basis for the negotiations. Nevertheless, State delegations and other relevant
stakeholders will be invited to present comments, even of a preliminary character, on the
proposals presented by the Chair-Rapporteur, as the main component of the informal and
interactive discussion foreseen in the programme of work of the 11th session of the OEIGWG.
1List of OEIGWG Chair-Rapporteur suggested redrafting
of selected provisions (Articles 4 to 11)
1. Articles 4.2.e & 5.1: Redraft to align/ensure consistency between the provisions on victim’s
right to protection from intimidation and reprisals (Art 4.2.e) and the corresponding State
duty (Art 5.1).
2. Articles 4.4 & 5.4: Redraft to align and ensure consistency between the provisions on
victim’s right to seek precautionary measures and the corresponding State duty (Art. 5.4).
3. Article 5.3: Redraft the provision on the State duty to investigate business human rights
abuses and to adopt measures against those responsible and its applicable legal
framework.
4. Article 6.1 & 6.2: Redraft the provision on the State duty to adopt measures to prevent
business human rights abuses, ensure respect for human rights, and require due diligence,
and its applicable legal framework.
5. Article 7.2: Redraft the provision on the victim’s accessibility to State agencies or
mechanisms, reduce obstacles and ensure effective remedy.
6. Article 7.3: Redraft to align and ensure consistency between the provision on access to
information and evidence, and Art. 7.2(a).
7. Article 8.1 & 8.2: Redraft the provisions on the general State duty to establish legal liability
(Art. 8.1) and its applicable legal framework (Art. 8.2).
8. Article 8.3: Redraft or consolidate the provisions on the liability of legal and natural persons
to capture different forms of possible business involvement in human rights abuses.
9. Article 8.6 bis: Improve the provisions on ensuring that parent/lead companies are held
accountable for abuses in their value chain (joint and several liability).
10. Article 9.1 & 9.2: Redraft the provisions, including in particular in relation to forum
necessitatis, while adjusting the language to the definition of “domicile” of legal persons and
clarifying other elements of connection (other proposals on Art. 9).
11. Article 9.4: Redraft or introduce a provision related to the potential misuse of forum non
conveniens to avert a denial of justice and clarify the connection factors for jurisdiction.
12. Article 10: Adjust the provisions to clarify terms for the statutes of limitation for certain
human rights abuses, period of time and applicable legal framework.
13. Art. 11.2: Improve the provision on the rule that allows the victim to choose the applicable
substantive law for their claim.
21.- Articles 4.2(e) and 5.1
Current text in the Updated draft legally binding instrument (LBI):
Article 4.2 “Without prejudice to Article 4.1. above, victims shall: … (e) be protected from any
unlawful interference against their privacy, and from intimidation, and reprisals, before, during and
after any proceedings have been instituted, as well as from re-victimization in the course of
proceedings for access to effective, prompt and adequate remedy, including through appropriate
protective and support services that are gender and age responsive;”.
Article 5.1 “States Parties shall protect victims, their representatives, families, and witnesses from
any unlawful interference with their human rights and fundamental freedoms, including prior,
during and after they have instituted any proceedings to seek access to effective, prompt, and
adequate remedy, as well as from re-victimization in the course of these proceedings.”.
Background of the relevant provision(s) and related proposals:
• Merge both provisions into a single formulation, in order to streamline the text and avoid
an apparent overlap or duplication. Nevertheless, maintaining separate but mirror provisions -
in a way that are explicitly connected to each other- could enhance legal certainty for all
relevant stakeholders concerned, by making their right to protection visible while at the same
time grounding it in the correlative duty of the State. This makes it possible to emphasize that
the rights of victims as set out in all subparagraphs of Art. 4.2 entail a common and positive
obligation on the part of the State (Art. 5) that includes, in this case, protection against
intimidation or reprisals. In this sense, it seems pertinent to streamline the provisions of Art. 5
while ensuring that the specific content of the rights to be protected (Art. 4) is retained.
• Whether the term “victims” is the most appropriate expression for Articles 4 and 5, and
more generally for the text of the instrument as a whole, or whether it would be necessary to
employ alternative formulations to meet more precisely the objectives of the LBI. Suggested
alternatives include references to “victims, affected persons and communities” or to “rights
holders”, among others encompassing formulations. This would apply throughout the text and
therefore it was considered more appropriate to address it in a cross-cutting manner in the
article on definitions (Art. 1).
• Whether the protection should extend “before” proceedings are instituted. This raises
the issue of when the State’s duty of protection begins. In that sense, texts such as the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law (adopted by consensus through UNGA resolution 60/147) recognizes
protection “before, during and after judicial, administrative, or other proceedings that affect the
interests of victims”.
• Reformulation of provisions in a way that maximizes full protection of specific rights, in
an environment that is free from intimidation or reprisals. This would entail consolidating
a language beyond aspects limited to privacy, so as to cover a fuller range of human rights at
stake during such proceedings. It would also entail applying the protection not only to victims
themselves but also to their representatives, families and witnesses, who may also face real
risks in this context.
Additional language or sources that could also be taken into consideration:
• Art. 13 CRPD: “Article 13 - Access to justice. States Parties shall ensure effective access to
justice for persons with disabilities on an equal basis with others, including through the
provision of procedural and age-appropriate accommodations, in order to facilitate their
effective role as direct and indirect participants, including as witnesses, in all legal proceedings,
including at investigative and other preliminary stages”
.
3• “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”:
“Article 12. (…) 2. The State shall take all necessary measures to ensure the protection by the
competent authorities of everyone, individually and in association with others, against any
violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other
arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in
the present Declaration”.
• HRC resolution 54/24, adopted without a vote, states, among other elements, that the Council:
“5. Urges States to take all appropriate measures to prevent the occurrence of acts of
intimidation or reprisal, whether online or offline, including, where necessary, by adopting and
implementing specific legislation and policies to promote a safe and enabling environment for
engagement with the United Nations on human rights and to effectively protect those who seek
to cooperate, cooperate or have cooperated with the United Nations, its representatives and
mechanisms in the field of human rights from any act of intimidation or reprisal”.
• General Comment N°3 (CAT/C/GC/3), entitled “Implementation of article 14 by States parties”,
where the Committee Against Torture stated that: “31. The State party should also take
measures to prevent interference with victims’ privacy and to protect victims, their families and
witnesses and others who have intervened on their behalf against intimidation and retaliation
at all times before, during and after judicial, administrative or other proceedings that affect the
interests of victims. Failure to provide protection stands in the way of victims filing complaints
and thereby violates the right to seek and obtain redress and remedy”.
• General Comment N°33 (CEDAW/C/GC/33), on “women’s access to justice”, where the
Committee on the Elimination of Discrimination against Women, stated that: “18. With regard
to the good quality of justice systems, the Committee recommends that States parties: (g)
Protect women complainants, witnesses, defendants and prisoners from threats, harassment
and other forms of harm before, during and after legal proceedings and provide the budgets,
resources, guidelines and monitoring and legislative frameworks necessary to ensure that
protective measures function effectively”.
• The same general comment states that “13.The Committee has observed that the
concentration of courts and quasi-judicial bodies in the main cities, their non-availability in rural
and remote regions, the time and money needed to gain access to them, the complexity of
proceedings, the physical barriers for women with disabilities, the lack of access to high-quality,
gender-competent legal advice, including legal aid, as well as the often-noted deficiencies in
the quality of justice systems (e.g., gender-insensitive judgements or decisions owing to a lack
of training, delays and excessive length of proceedings, corruption) all prevent women from
gaining access to justice.” Therefore, “15. With regard to justiciability, the Committee
recommends that States parties: (a) Ensure that rights and correlative legal protections are
recognized and incorporated into the law, improving the gender responsiveness of the justice
system”.
Objective of the suggested new language:
Redraft to align the victim’s right to protection from intimidation and reprisals (Art 4.2.e) with the
corresponding State duty (Art 5.1).
New suggested language:
Article 4.2 “Without prejudice to Article 4.1. above, victims, their representatives, their families and
witnesses, shall:…(e) be protected from any unlawful interference against their human rights and
fundamental freedoms, including against their privacy, and from intimidation and reprisals [or from
any violence, threats, harassment, retaliation, de facto or de jure adverse discrimination, pressure
or any other harm or arbitrary action], [whether online or offline], before, during and after any
administrative, judicial or other proceedings have been instituted, as well as from re-victimization
4in the course of proceedings to seek for access to effective, prompt and adequate remedy,
including through appropriate protective and support services that take into account their specific
needs, including in a manner that are is responsive to gender and age responsive and disability-
inclusive.”
Article 5.1: “States Parties shall protect take adequate and effective measures to ensure the
protection of victims, their representatives, families and witnesses, from any unlawful interference
with their human rights and fundamental freedoms, including prior, during and after they have
instituted any proceedings to seek access to effective, prompt, and adequate remedy, as well as
from re-victimization in the course of these proceedings and guarantee their human rights and
fundamental freedoms, in line with Article 4”.
2.- Articles 4.4 and 5.4
Current text in the Updated draft legally binding instrument (LBI):
Article 4.4 “Victims shall have the right to request State Parties, pending the resolution of a case,
to adopt precautionary measures related to urgent situations that present a serious risk of or an
ongoing human rights abuse.”
Article 5.4 “States Parties, pending the resolution of a case, shall adopt, either ex officio or on
request by the victim, precautionary measures related to urgent situations that present a serious
risk of or an ongoing human rights abuse.”
Background of the relevant provision(s) and related proposals:
• Merge both provision into a single formulation, or relocating the content of both
provisions to Article 4 or to Article 7, bearing in mind that Article 6 refers to preventive
measures to be developed in domestic law in the context of human rights due diligence. In light
of the provisional yet urgent nature of all types of precautionary measures, there appears to be
reasons to retain Articles 4 and 5, without prejudice to the possibility of including -if deemed
appropriate- an explicit reference to Article 7. Such an approach would allow to underscore the
interconnection between the relevant provisions, strengthen legal clarity, avoid unnecessary
duplication, and enhance the overall consistency of the draft LBI as a whole.
• Include the expression both ‘judicial and non-judicial mechanisms’, bearing in mind the
reference to the expression “pending the resolution of a case”. In line with HRC resolution 17/4
on the UNGPs on Business and Human Rights, it must be noted that the access to remedy
pillar of those Guiding Principles refers to judicial mechanisms, State-based non-judicial
grievance mechanisms and non-State-based grievance mechanisms. In this context,
precautionary measures might be facilitated or adopted as agreed by the parties or
recommended by the respective State-based mechanism, consistent with applicable rules and
without prejudice to the State’s duty to ensure effective protection.
• Admit precautionary measures only in situations that present ‘a serious risk of
irreparable’ human rights abuse. The concept of urgent action is intrinsically linked to the
nature and gravity of the potential or actual harm at stake, which may justify the need for the
interim but expedited relief. In this regard, two categories of risks could be identified: risks of
irreparable harm (linked to its nature) and risks of serious harm (linked to its gravity). If both
qualifiers are compounded into the formulation ‘serious risk of irreparable harm’, the threshold
to trigger precautionary measures would become considerably higher, thereby limiting the
number of situations in which such measures could be applied, even when there is a
reasonably foreseeable or plausible risk of either irreparable or serious harm, without prejudice
of the need to ensure reasonable predictability in light of the circumstances. Therefore, a
balanced formulation would be to provide for precautionary measures in situations of either
irreparable or serious harm, without requiring that both qualifiers be compounded, and without
5limiting their application exclusively to ongoing violations. This approach would preserve their
preventive function and ensure their availability whenever there is a plausible risk that grave or
irreparable harm may occur.
• Add qualifiers intended to ensure that precautionary measures are available, accessible
and adequate. It could be argued that such qualifiers could serve to specify and underline the
duty of States to guarantee, “in coherence with their domestic legal and administrative
systems”, that these measures are not only formally established but also effectively within the
reach of victims and capable of providing meaningful protection. In addition, consideration
could be given to including a duty of the State to establish ‘injunctive relief by courts’,
‘dedicated institutional or legal frameworks capable at responding promptly and
effectively’ or ‘a rapid response mechanism’, thereby ensuring that States fully comply at
national level with this important duty in an adequate and effective manner. This approach
would preserve consistency and coherence, avoid unnecessary duplication, and ensure that
precautionary measures are effectively supported by appropriate institutional frameworks.
Additional language or sources that could also be taken into consideration:
• American Convention on Human Rights: “Article 63 (…) 2. In cases of extreme gravity and
urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt
such provisional measures as it deems pertinent in matters it has under consideration. With
respect to a case not yet submitted to the Court, it may act at the request of the Commission.”
• European Court of Human Rights, Rules of the Court: “Rule 39. Interim measures
1. The Court may, in exceptional circumstances, whether at the request of a party or of any
other person concerned, or of its own motion, indicate to the parties any interim measure which
it considers should be adopted. Such measures, applicable in cases of imminent risk of
irreparable harm to a Convention right, which, on account of its nature, would not be susceptible
to reparation, restoration or adequate compensation, may be adopted where necessary in the
interests of the parties or the proper conduct of the proceedings.”
• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an
African Court on Human and Peoples' Rights: “Article 27.2 In case of extreme gravity and
urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such
provisional measures as it deems necessary.”
• Committee on Economic, Social and Cultural Rights, General Comment N° 24 (2017) State
obligations in the context of business activities: Para 53 “While they generally should not be
seen as a substitute for judicial mechanisms (which often remain indispensable for effective
protection against certain violations of Covenant rights), non-judicial remedies may contribute
to providing effective remedy to victims whose Covenant rights have been violated by business
actors and ensuring accountability for such violations. These alternative mechanisms should
be adequately coordinated with available judicial mechanisms, both in relation to the sanction
and to the compensation for victims.”
Objective of the suggested new language:
Redraft to align and ensure consistency between the provisions on victim’s right to seek
precautionary measures (Art. 4.4) and the corresponding State duty (Art. 5.4).
New suggested language:
Article 4.4 “Victims shall have the right to request State Parties, pending the resolution of a case,
including through judicial and non-judicial mechanisms, to adopt precautionary measures related
to urgent situations that present a serious risk of to avoid possible irreparable or serious harm, or
to cease an ongoing human rights abuse.”
Article 5.4 “States Parties, pending the resolution of a case, shall adopt either ex officio or on
request by the victims, the precautionary measures related to urgent situations that present a
6serious risk of or an ongoing human rights abuse referred to in Article 4.4 and shall ensure that
such measures are available, accessible and adequate, including, as appropriate, through the
establishment of rapid response mechanisms as provided for in Article 16.
3.- Article 5.3
Current text in Updated draft legally binding instrument (LBI):
Article 5.3 “States Parties shall investigate human rights abuses covered under this (Legally
Binding Instrument), effectively, promptly, thoroughly, and impartially, and where appropriate, take
action against those natural or legal persons responsible, in accordance with domestic and
international law.”
Background of the relevant provision(s) and related proposals:
• To what extent this provision should be anchored primarily in international human rights
law, and whether it should also explicitly reflect domestic legal frameworks, regarding
the State’s duty to investigate and take action. It should be noted that references to domestic
legislation might have value in specifying how international obligations are to be implemented
in light of different legal traditions and systems. In this respect, it would be preferable to frame
the provision primarily within the obligations arising from international human rights law,
particularly the duty of States to exercise due diligence when any actor, including State and
non-State actors, natural or legal person, could cause actual or potential human rights abuse,
while retaining references to the respective domestic legal framework insofar as they help to
guarantee its implementation, provided that they align and remain consistent with the
international obligations of the State.
• Strengthening of national capacities for the implementation of measures of investigation
and sanction of human rights abuses. This element appears to constitute a valuable
complement to the State duty of due diligence, particularly in cases where preventive measures
have failed. Therefore, a reference to the strengthening of national capacities in this context
would be advisable, but it could be better addressed within the framework of Article 16 on
implementation.
• Whether to include qualifiers that specify the manner in which investigations are to be
carried out, it is important to note that existing international standards normally refer to
investigations being conducted effectively, promptly, thoroughly and impartially, and within a
reasonable time. The inclusion of these qualifiers in the draft would therefore enhance legal
clarity and certainty, provide alignment with established standards, and contribute to
strengthening the overall level of protection afforded by the whole instrument.
Additional language or sources that could also be taken into consideration:
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
“Article 12. Each State Party shall ensure that its competent authorities proceed to a prompt
and impartial investigation, wherever there is reasonable ground to believe that an act of torture
has been committed in any territory under its jurisdiction.”
• UNGA resolution 60/147, entitled Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law: “3. (…) (b) Investigate violations effectively,
promptly, thoroughly and impartially and, where appropriate, take action against those allegedly
responsible in accordance with domestic and international law”.
• Committee against Torture’s General Comment N° 3 (2012), CAT/C/GC/3: “23. According to
article 12, States parties shall undertake prompt, effective and impartial investigations,
wherever there is reasonable ground to believe that an act of torture has been committed in
7any territory under its jurisdiction as the result of its actions or omissions and, CAT/C/GC/3:6
as set out in article 13 and affirmed by the Committee in its general comment No. 2, ensure
that impartial and effective complaints mechanisms are established.”
• Updated set of principles for the protection and promotion of human rights through action to
combat impunity (2005), contained in E/CN.4/2005/102/Add.1: “Principle 19. Duties Of States
with regard to the Administration of Justice. States shall undertake prompt, thorough,
independent and impartial investigations of violations of human rights and international
humanitarian law and take appropriate measures in respect of the perpetrators, particularly in
the area of criminal justice, by ensuring that those responsible for serious crimes under
international law are prosecuted, tried and duly punished.”
Objective of the suggested new language:
Redraft and clarify the provision on the State duty to investigate business human rights abuses
and to adopt measures against those responsible and its applicable legal framework.
New suggested language:
Article 5.3 “States Parties shall investigate human rights abuses covered under this (Legally
Binding Instrument) effectively, promptly, thoroughly, and impartially and within a reasonable time,
and, where appropriate, take action against those responsible, whether natural or legal persons
responsible,. Such investigations and actions shall be carried out in accordance with the State’s
domestic and legal framework, in a manner consistent with the State’s international human rights
law obligations.
”
4.- Articles 6.1 and 6.2
Current text in Updated draft legally binding instrument (LBI):
Article 6.1 “States Parties shall regulate effectively the activities of all business enterprises within
their territory, jurisdiction, or otherwise under their control, including transnational corporations
and other business enterprises that undertake activities of a transnational character.”
Article 6.2 “State Parties shall adopt appropriate legislative, regulatory, and other measures to:
(a) prevent the involvement of business enterprises in human rights abuse;
(b) ensure respect by business enterprises for internationally recognized human rights and
fundamental freedoms;
(c) ensure the practice of human rights due diligence by business enterprises; and,
(d) promote the active and meaningful participation of individuals and groups, such as trade
unions, civil society, non-governmental organizations, indigenous peoples and community-
based organizations, in the development and implementation of laws, policies and other
measures to prevent the involvement of business enterprises in human rights abuse.”
Background of the relevant provision(s) and related proposals:
• Whether additional language to adjust Article 6.1 is necessary, the proposal seeks to
specify the reach of legislative, regulatory and other measures to ensure due diligence by
business entities. Therefore, regarding the expression “otherwise under their control”, one
option considered was to frame it in terms of a close nexus between a business entity and a
State, for instance in the case of State-owned or State-controlled enterprises, with a
corresponding duty on the State to take measures in that regard. At the same time, it is noted
that questions of jurisdiction and questions of ownership or control of enterprises, while related,
are to be understood as distinct. It is also observed that matters concerning the overall scope
of the instrument -including how to frame the categories of enterprises covered- are more
appropriately examined in the context of article 1 on definitions and article 3 on scope. In
addition, delegations may wish to reflect on the relationship between article 6.1 and article 6.2,
8including whether article 6.1 should remain a general provision, with article 6.2 giving further
development to its content.
• Whether additional language to adjust the chapeau of Article 6.2 is necessary, it is
important to avoid duplicating the content of provisions already contained in article 6.2(a) and
(b), which specifically address prevention and respect. The expression “other measures” in the
chapeau may reasonably be interpreted as covering policy measures, although there are merits
in maintaining the expression “legal and policy measures” which could be understood as
encompassing all possible measures to be taken by the State. Furthermore, under international
human rights law, the State duty to protect is generally understood as an obligation of conduct
rather than of result. Also, it should also be noted that article 6.2 concerns the regulation of
business enterprises, an area generally regarded as subject to obligations of immediate effect.
Therefore, introducing language on progressive implementation or conditioning obligations on
institutional resources may therefore generate ambiguity and legal uncertainty, especially as
no “minimum core” has been defined in this context.
• On the proposal to replace “shall” with “should” in the chapeau of Article 6.2. The use
of “shall” establishes a clear and binding obligation of States, aligning the provision with existing
duties under international law. By contrast, replacing it with “should” would transform the
provision into a form of non-binding guidance or recommendation, reducing its normative
strength. Such a change could weaken the coherence of the instrument and risk lowering the
level of protection expected. Also, Guiding Principle 1 reflects the following established duty:
“States must protect against human rights abuse within their territory and/or jurisdiction by third
parties, including business enterprises. This requires taking appropriate steps to prevent,
investigate, punish and redress such abuse through effective policies, legislation, regulations
and adjudication”.
• Maintain or reformulate the reference to “internationally recognized” rights in Articles
6.2(b). Without prejudice of further consideration in the future, one option is to retain the
reference, as it stands to provide a useful point of orientation. Other alternative would be to
replace it with expressions such as “in conformity with the obligations of the State Party under
international law”, or through a more elaborated formulation referring, at least, to treaties to
which the State is party and to customary international law. Other options such referring to
“general principles of law”, “general international law”, “treaties to which the State is Party”
“domestic law of the State” or “customary international law”, or a more general reference such
as “human rights” and/or “fundamental freedoms” are still to be carefully considered, to the
extent possible, always with a view to reflect more accurately existing duties. As this question
applies throughout the text, it is considered more appropriate to address it in a cross-cutting
manner when addressing article 1 on definitions. Notwithstanding, for the purposes of the
current suggestion it would seem appropriate to use the expression “respect … for international
human rights law”, which is an expression used in HRC resolution 26/9.
• Whether it is necessary to add language clarifying the nature and scope of human rights
due diligence referred to in Article 6.2(c). This element was addressed in the chapeau of
article 6.4, which refers to “legally enforceable requirements”. While the drafting of that
chapeau may benefit from further clarification, the principle itself is also reflected in the text.
Regarding other measures States may adopt to prevent business involvement in human rights
abuse, it was stressed during the informal thematic consultations that article 6.2 is not confined
to due diligence measures, and that the chapeau of article 6.4 expressly refers to “measures
to achieve the ends referred to in article 6.2”, which includes both due diligence and other forms
of prevention, not as a mere procedural formality, but a meaningful process that protects
stakeholders from adverse human rights impacts linked to business activities. In this regard
and in the light of recent State practices on corporate sustainability due diligence legislation,
as well as with advisory opinions by international courts, it was considered necessary to
incorporate an environmental dimension to the measures referred to in Article 6, in order to
9align its future implementation to the practice, recent legal developments and opinions
mentioned above, and most importantly to achieve the purposes of prevention of future
corporate human rights abuse.
Additional language or sources that could also be taken into consideration:
• International Covenant on Civil and Political Rights (ICCPR) Article 25 “Every citizen shall have
the right and the opportunity, without any of the distinctions mentioned in article 2 and without
unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;”.
• Human Rights Committee, General Comment N° 31 (2004), on “The Nature of the general legal
obligation imposed on States Parties to the Covenant”, CCPR/C/21/Rev.1/Add.13: “8. The
article 2, paragraph 1, obligations are binding on States and do not, as such, have direct
horizontal effect as a matter of international law. The Covenant cannot be viewed as a
substitute for domestic criminal or civil law. However the positive obligations on States Parties
to ensure Covenant rights will only be fully discharged if individuals are protected by the State,
not just against violations of Covenant rights by its agents, but also against acts committed by
private persons or entities that would impair the enjoyment of Covenant rights in so far as they
are amenable to application between private persons or entities. There may be circumstances
in which a failure to ensure Covenant rights as required by article 2 would give rise to violations
by States Parties of those rights, as a result of States Parties’ permitting or failing to take
appropriate measures or to exercise due diligence to prevent, punish, investigate or redress
the harm caused by such acts by private persons or entities.”
• Committee on Economic, Social and Cultural Rights, General Comment N° 24 (2017) on State
obligations under the International Covenant on Economic, Social and Cultural Rights in the
context of business activities, E/C.12/GC/24: “14. The obligation to protect means that States
parties must prevent effectively infringements of economic, social and cultural rights in the
context of business activities. This requires that States parties adopt legislative, administrative,
educational and other appropriate measures, to ensure effective protection against Covenant
rights violations linked to business activities, and that they provide victims of such corporate
abuses with access to effective remedies.” “16. The obligation to protect entails a positive duty
to adopt a legal framework requiring business entities to exercise human rights due diligence
in order to identify, prevent and mitigate the risks of violations of Covenant rights, to avoid such
rights being abused, and to account for the negative impacts caused or contributed to by their
decisions and operations and those of entities they control on the enjoyment of Covenant
rights. States should adopt measures such as imposing due diligence requirements to prevent
abuses of Covenant rights in a business entity’s supply chain and by subcontractors, suppliers,
franchisees, or other business partners.”
Objective of the suggested new language:
Redraft and clarify the provision on the State duty to adopt measures to prevent business human
rights abuses, ensure respect for human rights, and require due diligence, and its applicable legal
framework.
New suggested language:
Article 6.1 “States Parties shall regulate, in accordance with international human rights law, the
activities of all transnational corporations and other business enterprises within their territory,
jurisdiction, or otherwise under their control, whether those activities are carried out domestically
or abroad including transnational corporations and other business enterprises that undertake
activities of a transnational character.
”
Article 6.2 “For the purposes of Article 6.1, State Parties shall take appropriate legislative and
adopt appropriate legislative, regulatory, and other measures to:
(a) prevent the involvement of transnational corporations and other business enterprises in
10human rights abuse;
(b) ensure respect by transnational corporations and other business enterprises for
internationally recognized human rights and fundamental freedoms, as reflected in treaties
to which the State is a Party, in customary international law, in the general principles of law,
and in the domestic law of the State Party;
(c) require ensure that transnational corporations and other business enterprises undertake the
practice of human rights due diligence, including in relation to the protection of the
environment by business enterprises;
(d) promote ensure the active and meaningful participation of individuals and groups, such as
including inter alia, human rights defenders, Indigenous Peoples, trade unions, civil society,
non-governmental organizations, indigenous peoples and community-based organizations,
in the development and implementation of laws, policies and other measures to prevent the
involvement of business enterprises in human rights abuse.”
5.- Article 7.2
Current text in Updated draft legally binding instrument (LBI):
Article 7.2 “State Parties shall, consistent with its domestic legal and administrative systems:
(a) develop and implement effective policies to promote the accessibility of its relevant State
agencies to victims and their representatives, taking into account the particular needs and
interests of those victims who may be at risk of vulnerability or marginalization;
(b) progressively reduce the legal, practical, and other relevant obstacles that, individually or in
combination, hinder the ability of a victim from accessing such State agencies for the
purposes of seeking an effective remedy; and
(c) ensure that relevant State agencies can either deliver, or contribute to the delivery of,
effective remedies.
”
Background of the relevant provision(s) and related proposals:
• Whether the draft should retain language enabling courts to allow proceedings in
appropriate cases. It should be considered that this issue is closely connected to judicial
competence. From that perspective, it may be considered whether the more suitable placement
of such language would be under Article 9, which deals specifically with jurisdiction.
• Whether Article 7.2 should be expanded to ensure that domestic laws and court
proceedings facilitate access to information from States and corporate entities,
including disclosure of finances, relations and other relevant data, as well as the
admissibility of broader categories of evidence. It has been noted that access to such
information is often indispensable for effective remedies, particularly in relation to corporate
groups and supply chains. Nevertheless, it was considered that such specific element of
access to remedy was more suitable to be addressed in Article 7.3.
• Whether article 7.2(c) should contain an explicit reference to the need to guarantee the
availability of mechanisms and remedies following the determination of legal liability
under article 8. It is recalled that international and regional human rights law recognize the
right to an effective remedy as encompassing not only the possibility of reparation once liability
has been established but also access to judicial and administrative mechanisms in broader
terms.
Additional language or sources that could also be taken into consideration:
• General Assembly Resolution 60/147, A/RES/60/147, Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law “VIII. Access to justice.
12. A victim of a gross violation of international human rights law or of a serious violation of
11international humanitarian law shall have equal access to an effective judicial remedy as
provided for under international law.”
Objective of the suggested new language for the relevant provision(s):
Redraft the provision on the victim’s accessibility to State agencies, with a view to reduce
obstacles and ensure effective remedy.
New suggested language:
Article 7.2 “State Parties shall, consistent with its domestic legal principles and administrative
systems:
(a) develop and implement effective policies legislative or other measures to promote ensure
the accessibility of its relevant judicial and not judicial mechanisms State agencies to victims
of human rights abuses in the context of business activities and their representatives, taking
into account the particular needs and interests of those victims who may be at risk of
vulnerability or marginalization;
(b) progressively reduce remove the legal, practical, and other relevant obstacles that,
individually or in combination, hinder the ability of a victim from accessing such judicial and
non-judicial mechanisms State agencies for the purposes of seeking an effective remedy;
and
ensure that relevant judicial and non-judicial mechanisms State agencies can either deliver,
or contribute to the delivery of, effective remedyies.
”
(c) 6.
- Article 7.3
Current text in Updated draft legally binding instrument (LBI):
Article 7.3 “The policies referred to in Article 7.2 (a) shall address to the extent applicable to the
State agency in question:
(a) the need to ensure that procedures and facilities for accessing and interacting with such
agencies are responsive to the needs of the people for whose use they are intended,
including by providing appropriate, adequate, and effective legal aid throughout the legal
process;
(b) the need to ensure that victims have ready access to reliable sources of information, in
relevant languages and accessible formats to adults and children alike, including those
with disabilities, for victims and their representatives, about their human rights, the role
and capacity of relevant State agencies in relation to helping victims obtain an effective
remedy, the status of their claims, and appropriate support to enable them to participate
effectively in all relevant processes, including by facilitating requests for disclosure of
relevant information of business-related activities or relationships linked to a human rights
abuse;
(c) the implications in terms of access to remedy of imbalances of power as between
victims and business enterprises; and
(d) risks of reprisals against victims and others.”
Background of the relevant provision(s) and related proposals:
• Whether article 7.3(a) should retain references to the provision of legal aid throughout
the legal process. On that element, it has been noted that such provision is to be understood
in the light of the general State-duty to ensure human rights. In some circumstances, legal aid
is necessary to guarantee that victims of corporate human rights abuses are able to obtain an
effective remedy. In this regard, it should be noted that the removal of such a reference might
run against existing obligations under international and regional human rights law.
• Whether article 7.3(b) should maintain references to the facilitation of requests for
disclosure of relevant information concerning business involvement with human rights
abuses. It is important to note that mandated disclosure of business-related information may
12raise challenges, including potential inconsistency with judicial guarantees, presumption of
innocence, and due process, as well as divergences across legal systems and traditions.
Nevertheless, it is also recognized that access to information is a key element of the right to an
effective remedy, particularly in judicial and administrative proceedings.
• Whether the qualifier “effective” should be removed from the concept of remedy. It is
recalled that since the very adoption of the Universal Declaration of Human Rights, the right to
remedy has been consistently characterized by its effectiveness. This interpretation has been
reaffirmed throughout subsequent international instruments, UN treaty bodies and regional
courts decisions.
• Whether article 7.3(c) should be retained. It is noted that the draft already contains several
provisions aimed at addressing specific imbalances between victims and business enterprises
in both judicial and non-judicial mechanisms. States may therefore wish to consider if it is
necessary to retain such an open reference in this paragraph. On whether article 7.3(d) should
be maintained, it is recalled that Articles 4.2(e), 5.2 and 7.4(c) of the Updated draft LBI already
stipulate measures to protect victims from reprisals before, during and after proceedings.
• Introduce a subparagraph (bis) under Article 7.3, stipulating the removal of legal
obstacles, including forum non conveniens. In this regard, it is recalled that this doctrine
has often been considered an obstacle to access to remedy, given its cost, complexity and the
imbalance between victims and companies. Forum non conveniens decisions may deprive
victims of access to home State courts where effective remedy may be more accessible, and
conversely expose them to obstacles in host State courts. At the same time, regulation of forum
non conveniens naturally falls under Article 9 on adjudicatory jurisdiction, with Article 9(3) of
the current draft already addressing this issue. Finally, with regard to other suggested language
on the removal of legal obstacles, such a reference was introduced in Article 7.2.
Objective of the suggested new language for the relevant provision(s):
Redraft to align/ensure consistency between the provision on access to information and evidence,
and Art. 7.2(a).
New suggested language:
Article 7.3 “The policies and measures referred to in Article 7.2 (a) shall address to the extent
applicable to the State agency mechanism in question:
(a) the need to ensure that procedures and facilities for accessing and interacting with such
judicial and non-judicial mechanisms agencies are responsive to the needs of the people
for whose use they are intended, including by providing appropriate, adequate, and
effective legal aid throughout the legal process;
(b) the need to ensure that victims and their representatives have ready access to reliable
sources of information, in relevant languages and accessible and gender-responsive
formats to adults and children alike, including those with disabilities, for victims and their
representatives, about their human rights, the role and capacity of relevant judicial and
non-judicial mechanisms State agencies in relation to helping victims obtain an effective
remedy, including in relation to the status of their claims, and appropriate support to
enable them to participate effectively in all relevant processes, including by facilitating
requests for disclosure of relevant information of business-related activities or
relationships linked to a human rights abuse;
(c) the implications in terms of access to remedy of imbalances of power as between
victims and business enterprises; and
(d) risks of reprisals against victims and others.”
137.
- Article 8.1 & 8.2
Current text in Updated draft legally binding instrument (LBI):
Article 8.1.
“Each State Party shall adopt such measures as may be necessary to establish a
comprehensive and adequate system of legal liability of legal and natural persons conducting
business activities, within their territory, jurisdiction, or otherwise under their control, for human
rights abuses that may arise from their business activities or relationships, including those of
transnational character.”
Article 8.2.
“Subject to the legal principles of the State Party, the liability of legal and natural
persons referred to in this Article shall be criminal, civil, or administrative, as appropriate to the
circumstances. Each State Party shall ensure, consistent with its domestic legal and
administrative systems, that the type of liability established under this article shall be:
(a) responsive to the needs of victims as regards remedy; and
(b) commensurate to the gravity of the human rights abuse.”
Background of the relevant provision(s) and related proposals:
• Whether to include a reference to “joint and several liability”. Paragraph 8.1 establishes
a general obligation for States to ensure an adequate system of legal liability, while paragraph
8.3(b) provides further detail on the matter. Introducing an explicit reference to “joint and several
liability” could enhance clarity in situations involving multiple entities, and therefore, it may be
advisable to include a cross-reference in that subparagraph. Similarly, and also with a view to
ensuring legal certainty in the interpretation of the future instrument, it may be appropriate to
consider an explicit reference to liability arising from “actions or omissions” or from “business
relationships”, even if such elements could arguably already be understood as encompassed
within the general duty set out in paragraph 8.1.
• Limiting applicability to business enterprises incorporated within the State Party’s
jurisdiction. This proposal is closely related to the scope and therefore should be addressed
in article 3. Nevertheless, it may be useful to retain the expression “transnational corporations
and other business enterprises”, in line with the terminology employed in Human Rights Council
resolution 26/9. Restricting liability to incorporated entities would narrow the duty of States in
a manner inconsistent with international human rights law, which requires States to respect
and ensure the rights of all persons “within their territory and subject to their jurisdiction”
[ICCPR, Art. 2.1; Human Rights Committee, General Comment No. 31 (2004), para. 10]. In
practice, irrespective of whether an entity is incorporated domestically or abroad, its operations
within the State’s territory fall under the jurisdiction of that State. Furthermore, many domestic
legal systems already require foreign companies to establish a local entity to be able to operate.
Such a limitation may therefore risk not only contradicting existing obligations but also
complicating the legal framework without adding clarity. It is also pertinent to recall that Article
11 addresses the implementation of liability regimes in domestic law, which may adequately
accommodate such concerns.
• Add a reference to consistency with domestic legal and administrative systems. While
coherence with domestic frameworks is important for implementation, it is necessary to
consider whether such language might reduce the ability of the treaty to establish common
standards of liability across States Parties, thereby weakening one of its objectives of level the
playing field in the human rights-business interactions.
• Remove “control” as a basis for jurisdiction. The notion of control is established in
international law, including in milestone judicial decisions of international tribunals, advisory
opinions of the ICJ and in decisions, reports or recommendations of the ILC. Within the scope
of this treaty, the concept may be especially relevant in relation to State-owned or State-
controlled enterprises, although it could also have implications regarding State responsibility
and immunity. Removing the reference could therefore limit the capacity of the instrument to
14address certain situations of transnational concern. Relevant guidance can be found in the UN
Guiding Principles on Business and Human Rights (2011), the OECD Guidelines on Corporate
Governance of State-Owned Enterprises (2024), the ILC Draft Principles on the Protection of
the Environment in Relation to Armed Conflict (2022), and the ILC Articles on State
Responsibility (2001). Nevertheless, a provision could be inserted in Article 14 to ensure that
references to control, in the sense of State-owned or State-controlled enterprises, are
consistent with different aspects of State responsibility and State immunity under international
human rights law and general international law.
• Replace “may” with “shall” in the chapeau of Article 8.2. A rigid formulation could
undermine recognition of the diversity of domestic approaches regarding the liability of legal
persons, particularly in the criminal sphere. Several international instruments expressly
condition this matter to the legal principles of each State. The way forward could be to preserve
a degree of flexibility, maintaining the obligation of States to establish a liability system, but at
the same time allowing them to determine the forms of liability in accordance with their own
legal principles, while maintaining consistency with relevant instruments such as the Optional
Protocol to the Convention on the Rights of the Child (2000), Article 3.4; the Draft Articles on
Prevention and Punishment of Crimes Against Humanity (2019), Article 6.8; and the United
Nations Convention against Corruption (2004), Article 26.1–2.
• Substituting the reference to “legal principles” with “legal systems”. The expression
“legal systems” may be understood as encompassing rules, institutions and procedures, while
the term “legal principles” refers to the general legal norms that underpin the domestic
framework. Since this provision addresses the modalities of liability recognized by States, the
use of “legal principles” appears more precise and more consistent with international legal
practice, as reflected in a number of instruments, i.e. the Optional Protocol to the Convention
on the Rights of the Child (2000), Article 3.4; the Draft Articles on Prevention and Punishment
of Crimes Against Humanity (2019), Article 6.8; the United Nations Convention against
Corruption (2004), Article 26.1–2; and the United Nations Convention against Transnational
Organized Crime (2000), Article 10.
Additional language or sources that could also be taken into consideration:
• Committee on Economic, Social and Cultural Rights, General comment N° 24 (2017) on State
obligations under the International Covenant on Economic, Social and Cultural Rights in the
context of business activities: “49. Ensuring corporate accountability for violations of Covenant
rights requires reliance on various tools. The most serious violations of the Covenant should
give rise to criminal liability of corporations and/or of the individuals responsible. Prosecuting
authorities may have to be made aware of their role in upholding Covenant rights. Victims of
violations of Covenant rights should have access to reparations where Covenant rights are at
stake and whether or not criminal liability is engaged”
.
• UN Convention Against Corruption, adopted by the General Assembly in 2003, by resolution
58/4: “Article 26. Liability of legal persons. 1. Each State Party shall adopt such measures as
may be necessary, consistent with its legal principles, to establish the liability of legal persons
for participation in the offences established in accordance with this Convention. 2. Subject to
the legal principles of the State Party, the liability of legal persons may be criminal, civil or
administrative. 3. Such liability shall be without prejudice to the criminal liability of the natural
persons who have committed the offences. 4. Each State Party shall, in particular, ensure that
legal persons held liable in accordance with this article are subject to effective, proportionate
and dissuasive criminal or non-criminal sanctions, including monetary sanctions.”
Objective of the suggested new language for the relevant provision(s):
Redraft the provisions on the general State duty to establish legal liability (Art. 8.1) and its
applicable legal framework (Art. 8.2), in a manner that preserves a degree of flexibility, allowing
15States to determine the forms of liability in accordance with their own legal traditions, while
maintaining consistency with relevant instruments.
New suggested language:
Article 8.1.
“Each State Party shall take effective legislative and other adopt such measures as
may be necessary to establish a comprehensive and adequate system of legal liability of natural
and legal persons conducting business activities within their territory, jurisdiction or otherwise
under their control, for human rights abuses and violations that may arise from their own actions
or omissions in the context of their business activities or business relationships, including those
of transnational character.”
Article 8.2.
“Subject to the legal principles of the State Party, the liability of legal and natural
persons referred to in this Article may shall be criminal, civil or administrative, as appropriate to
the circumstances. Each State Party shall ensure, consistent with its domestic legal and
administrative systems, that the type of liability established under this article shall be:
(a) responsive to the needs of victims as regards remedy; and
(b) commensurate to the gravity of the human rights abuse.”
8.
- Article 8.3
Current text in Updated draft legally binding instrument (Updated LBI):
Article 8.3 “Subject to the legal principles of the State Party, the liability of legal and natural persons
shall be established for:
(a) conspiring to commit human rights abuse; and
(b) aiding, abetting, facilitating, and counselling the commission of human rights abuse.”
Background of the relevant provision(s) and related proposals:
• Capture in the chapeau of Article 8.3 situations where two or more entities contribute to
human rights abuses. An overly rigid language could hinder domestic implementation, while
overly broad terms may create legal uncertainty. Therefore, a possible way forward could be to
use language that preserves flexibility for domestic translation in accordance with national legal
principles, while clarifying the specificities of civil, administrative and criminal liability, so that
different forms of direct and indirect involvement can be adequately covered.
• Focus on sanctions for causing or contributing to human rights abuses. While deterrent
sanctions are important, it must be recalled that article 8.6 already addresses this matter.
Therefore, a solution could be to ensure coherence by avoiding duplication, while considering
whether it is useful to differentiate between sanctions for causing abuses and those for
contributing to them. With respect to the idea of adding a list of examples, there could be
reasons to prefer an open-ended approach that helps maintaining better legal certainty and
flexibility across legal systems.
• Other language proposals on subparagraphs (a) and (b) of Article 8.3. With regard to some
of the proposals, it was considered favourably to adjust certain terminology, given that terms
such as “conspiracy”, “aiding” and “abetting” are rooted in criminal law and may not be easily
adaptable to civil or administrative contexts, and could duplicate language already found in
articles 8.1 and 8.2. A more effective approach would be to employ broader language that
captures the different ways in which business enterprises may be involved in human rights
abuses, leaving to each State, to determine, according with its legal principles, how liability
should be established in cases of causation and contribution. Furthermore, the language
presented would be more closely aligned with international standards and practices in the field
of business and human rights.
16Objective of the suggested new language for the relevant provision(s):
Redraft or consolidate the provisions on the liability of legal and natural persons to capture
different forms of possible business involvement in human rights abuses.
New suggested language:
Article 8.3 “Subject to the legal principles of the State Party, the liability of legal and natural persons
referred to in Article 8.1 above, shall be established for:
(a) acts or omissions causing conspiring to commit human rights abuses or violations abuse;
or and
(b) contributing to aiding, abetting, facilitating, and counselling the commission of human
rights abuses or violations, resulting from actions or omissions that, in combination with the
activities of other legal or natural persons, cause an adverse human rights impact, or
substantially influence another legal or natural person to cause an adverse human rights
impact;”
9.
- Article 8.6 bis
Current text in Updated draft legally binding instrument (Updated LBI):
Article 8.6: “Each State Party shall ensure that legal and natural persons held in accordance with
this Article shall be subject to effective, proportionate, and dissuasive penalties or other
sanctions”.
Background of the relevant provision(s) and related proposals:
• Addition of new provisions as Article 8.6.bis introducing elements related to joint and
several responsibilities with the following text: “All companies involved in human rights
abuse or violation, whether a subsidiary, a parent company, or any other business along
the value chain, shall be jointly and several responsible for human rights abuses or
violations in which they are involved”. As it was mentioned in the non-paper, this proposal,
as drafted, may be challenged on the basis of certain principles of tort law in which liability
depends on the causative nexus between human rights abuse and wrongful performance or
non-performance of functions and responsibilities assigned to particular corporate entities.
Nevertheless, a possible solution could be redrafting the proposal in that complements the
revised version of Article 8.3.b, in the sense that whenever there is a situation of human rights
abuses (or violations), both entities, the parent company or any other business along the value
chain (subsidiary, contractor or supplier) shall bear joint and several liability, unless the parent
company is able to demonstrate that it took adequate preventive measures. In this regard, the
provision focuses on legal certainty, and could be understood to complement article 6.5, which
integrates a duty of parent companies to take measures in relation to third parties with whom
a leal relationship exists (or has existed). It also builds upon recent legislative and judicial
experiences that set forth the duty of parent companies to engage proactively with its corporate
group and suppliers to prevent foreseeable harm.
• Other proposals of additional provisions as Article 8.6ter, quarter, and quinquies
introducing references or elements related to direct or indirect causation or contribution
to human rights abuses or violations; the rule of exhaustion of local remedies where
adequate or effective remedies are unavailable at that level; and the recognition that
human rights due diligence does not automatically absolve the liability of a legal or
natural person for causing or contributing to human rights abuses or violations. These
proposals, among others, were properly and individually addressed in the Non-paper circulated
for the second intersessional thematic consultation towards the 11th session of the OEIGWG,
with a suggestion of reconsideration of the convenience of introducing such references in this
article without changing its focus on the establishment of legal liability.
17Objective of the suggested new language for the relevant provision(s):
Improve the provisions on ensuring that hold parent/lead companies are held accountable for
abuses in their value chain (joint and several liability).
New suggested language:
Article 8.6.bis: “State Parties shall take all effective legislative and other measures to ensure that
their domestic law provides for the joint and several liability of business enterprises for the failure
to take adequate measures to prevent foreseeable human rights abuses that were caused or
contributed to by actions and/or omissions of legal or natural persons with whom they have a
business relationship”.
10.
- Articles 9.1 and 9.2:
Current text in Updated draft legally binding instrument (Updated LBI):
Article 9.1. “State Parties shall take such measures as may be necessary to establish its
jurisdiction in respect of human rights abuse in cases where:
(a) the human rights abuse took place, in whole or in part, within the territory or jurisdiction of that
State Party;
(b) the relevant harm was sustained, in whole or in part, within the territory or jurisdiction of that
State Party;
(c) the human rights abuse was carried out by either
i. a legal person domiciled in the territory or jurisdiction of that State Party; or
ii. a natural person who is a national of, or who has his or her habitual residence in the
territory or jurisdiction of, that State Party; and
(d) a victim seeking remedy through civil law proceedings is a national of, or has his or her
habitual residence in the territory or jurisdiction of, that State Party.”
Article 9.2. “For the purposes of Article 9.1, a legal person is considered domiciled in any territory
or jurisdiction in which it has its:
(a) place of incorporation or registration;
(b) principal assets or operations;
(c) central administration or management; or
(d) principal place of business or activity.”
Background of the relevant provision(s) and related proposals:
• Whether in Article 9.1(a) the phrase “where the human rights abuse took place” should
be clarified to avoid ambiguity in multi-actor settings, particularly where one actor’s
omission contributes to another actor’s wrongful act. While the forum of the direct
perpetrator’s act or omission is clear, the current wording may be improved to encompass the
forum where either the principal perpetrator acted or a contributing entity failed to act, especially
given the breadth of Article 1.3.
• Delete “relevant” before “harm” in Article 9.1(b). With regard to this proposal, it was
observed that removing the qualifier would not change the substance, as the determination of
what constitutes “the harm” will in any event be made by the adjudicating authority applying the
jurisdictional rule.
• Article 9.1(c) should refer to conduct “carried out by” or to harm “caused or contributed
to by,”. It was noted that the current wording may be read as requiring affirmative conduct and
not omissions, while in practice, parent companies or entities higher place in supply chains
may contribute to harm through failures to take reasonable preventive measures—an omission
central to Articles 6 and 8 and to human rights due diligence under the UNGPs.
18• Allow victims and their families to choose to bring claims, irrespective of nationality or
domicile, before courts where the harm occurred or produced effects, where a
contributing act or omission occurred, where the perpetrator is domiciled, or where the
victim is a national or domiciled. This proposal was not considered favourably taking into
account the significant expansion of the scope of the Legally Binding Instrument allowing a
victim who is national or habitual resident of a State Party to commence proceedings in any
State Party, even where the forum State has no connection to the parties or the dispute and
where justice can be obtained in the courts closely connected to the case, contradicting
therefore the rationale of forum necessitatis.
• Reintroducing in Article 9, a provision for jurisdiction over co-defendants. Such a
provision was contained in a previous version of the Legally Binding Instrument but was
removed not due to fundamental disagreement among the negotiating States, but because it
was considered unnecessary in light of the broad jurisdictional bases contained in that version
of the LBI. However, since the revised version of Article 9.1 is making that jurisdictional bases
more precise, and taking into account that business enterprises alleged to have committed
human rights abuses are often complex transnational entities whose constituent members are
closely connected by bonds of ownership and/or contracts but retain separate legal
personalities and liabilities, it was considered appropriate to reintroduce this rule in a new
paragraph under Article 9.1.
• Whether article 9.2 should refer to domicile “without prejudice to any broader definition
provided in any international instrument,”. As mentioned both in the non-paper and during
the intersessional consultations, cross-referencing any broader definition of domicile,
irrespective of instrument purpose, risks undermining the coherence of the instrument. Article
14.3 already preserves the application of more favourable provisions. Defining domicile for
natural persons conducting business activities could add value only if domicile operates as a
connecting factor elsewhere in article 9.1, which is presently not the case, as nationality and
habitual residence are used instead.
• Adding “principal or subsidiary” before “place of incorporation or registration,” and “or
subsidiary” before “assets or operations,” “administration or management,” and “place
of business or activity,”. As mentioned in the non-paper circulated before the third
intersessional thematic consultations towards the 11th session of the OEIGWG, the proposed
additions could create legal uncertainty and significantly expand Article 9.2. Incorporation
ordinarily occurs in a single State, while registration can occur in multiple States. Similar
principal/subsidiary qualifiers across assets, operations, administration, and places of business
would require careful definition to avoid unintended breadth.
• Delete article 9.2(b), which refers to the place of “principal assets or operations,”. It was
noted that the place of “principal assets” and “principal operations” are distinct connecting
factors. Jurisdiction based solely on the presence of assets is controversial and has been
treated as exorbitant in certain regional contexts when unrelated to the dispute. At the same
time, some States seek asset-based connections to address concerns about corporate
structures that silo assets away from operating jurisdictions, potentially frustrating enforcement.
An alternative response could be to strengthen recognition and enforcement provisions, as
contemplated in earlier drafts, rather than to establish such a broad general asset-based
jurisdiction. With respect to “principal operations,” States may also wish to consider its overlap
with “principal place of business or activity” in article 9.2(d), and the comparative tendency to
treat branch operations as a basis for special, not general, jurisdiction.
• Delete article 9.2(c). Regarding this proposal it was observed that defining a legal person’s
domicile by reference to “central administration or management” is widely used and reflected
in multiple instruments as an accepted connecting factor, and therefore, it was retained for
clarity and alignment with comparative practice.
19• Add “on a regular basis” after “principal place of business or activity” in article 9.2(d).
The concept of a principal place of business or activity already presupposes regularity, and
therefore, it was considered that the addition would not alter the substance.
Additional language or sources that could also be taken into consideration:
• The 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil
or commercial matters, which bases its rule of indirect general jurisdiction on the habitual
residence of legal and natural persons. Article 3 Definitions 2.: “An entity or person other than
a natural person shall be considered to be habitually resident in the State – (a) where it has its
statutory seat; (b) under the law of which it was incorporated or formed; (c) where it has its
central administration; or (d) where it has its principal place of business”
.
• The EU Brussels I bis Regulation (N° 1215/2012) on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters. Article 8(1): “A person domiciled in
a Member State may also be sued: (1) where he is one of a number of defendants, in the courts
for the place where any one of them is domiciled, provided the claims are so closely connected
that it is expedient to hear and determine them together to avoid the risk of irreconcilable
judgments resulting from separate proceedings”.
• International Law Association Resolution N° 2/2012: International Litigation and the Interest of
the Public adopting the Sofia Guidelines on Best Practices for International Civil Litigation for
Human Rights Violations: “2. International Jurisdiction Defendant’s domicile 2.1(1) The courts
of the State where the defendant is domiciled shall have jurisdiction. 2.1(2) Domicile in the
sense of paragraph 2.1(1) refers to: (a) for a natural person, her or his habitual residence; (b)
for a legal person, either the place where (i) it has its statutory seat or is incorporated (or under
the law of which it was formed; or (ii) it has its central administration; or (iii) its business, or
other professional activity, is principally carried on. 2.2 Connected claims 2.2(1) The courts of
the State where one of a number of defendants is domiciled shall have jurisdiction over all of
the defendants in respect of closely connected claims. 2.2(2) Claims are closely connected in
the sense of paragraph 2.2(1) if: (a) it is efficient to hear and determine them together; and (b)
the defendants are related. 2.2(3) Defendants are related in the sense of paragraph 2.2(2)(b),
in particular if at the time the cause of action arose: (a) they formed part of the same corporate
group; (b) one defendant controlled another defendant; (c) one defendant directed the litigious
acts of another defendant; or (d) they took part in a concerted manner in the activity giving rise
to the cause of action”
.
Objective of the suggested new language for the relevant provision(s):
Redraft the provisions Art. 9.1 and 9.2 in a manner that ensures the implementation of the doctrine
of forum necessitatis (Art. 9.1) while adjusting the language to the definition of “domicile” of legal
persons (Art. 9.2) and clarifying other elements of connection (other proposals on Art. 9).
New suggested language:
Article 9.1. “State Parties shall take such measures as may be necessary to establish its
jurisdiction in respect of human rights abuses arising from acts or omissions in cases where:
(a) the human rights abuse took place, in whole or in part, within the territory or jurisdiction of that
State Party;
(b) the relevant harm was sustained, in whole or in part, within the territory or jurisdiction of that
State Party;
(c) the legal person is domiciled the human rights abuse was carried out by either;
iii. a legal person domiciled in the territory or jurisdiction of that State Party; or
iv. a natural person who is a national of, or who has his or her habitual residence in the
territory or jurisdiction of, that State Party; and
(d) a victim seeking remedy through civil law proceedings is a national of, or has his or her habitual
residence in the territory or jurisdiction of, that State Party.”
20Article 9.2. “For the purposes of Article 9.1, a legal person the defendant is considered domiciled
in any territory or jurisdiction of the State in which it has its:
(a) where it has its statutory seat place of incorporation or registration;
(b) under the law of which it was incorporated or formed principal assets or operations;
(c) where it has its central administration or management; or
(d) where it has its principal place of business or activity.
”
11.
- Article 9.4
Current text in Updated draft legally binding instrument (LBI):
Article 9.4.”If a State Party exercising its jurisdiction under this Article has been notified, or has
otherwise learned, of judicial proceedings taking place in another State Party relating to the same
human rights abuse, or any aspect of such human rights abuse, the relevant State agencies of
each State shall consult one another with a view to coordinating their actions.”
Background of the relevant provision(s) and related proposal(s):
• Whether article 9.4 should provide that a court shall not decline its jurisdiction on the
basis that another court also has jurisdiction in accordance with article 9.1. Both in the
non-paper and during the intersessional thematic consultation, the issue of the operation of
forum non conveniens was addressed, with different views on the limits that a specific reference
or obligation may imply for its operation, including where the other parallel forum´s jurisdiction
rests on different criteria. In addition, such a rule could allow parallel proceedings whenever
two or more State Parties assume jurisdiction under article 9.1, with attendant risks of abuse
of process, forum shopping, conflicting judgments and unnecessary costs, making necessary
additional provisions on the interaction with lis pendens/coordination tools, so as to minimize
duplication while safeguarding victims’ rights.
• Whether States Parties should be required to maintain a database of judicial
proceedings taking place in States Parties. This proposal includes an important tool for
information exchange, cooperation and implementation, but may be addressed more precisely
in articles 12, 13 and 16, with clear parameters on purpose, content, confidentiality and data
protection.
• Whether consultations in cases of parallel proceedings should occur “through
established central authorities” rather than “between the relevant State agencies
handling the cases,”. The two formulations serve different coordination logics. Direct agency-
to-agency contacts may expedite case-specific problem-solving; central-authority channels
may ensure uniformity and record-keeping. Given that articles 12 and 13 already regulate
mutual legal assistance and international cooperation, States may wish to place any
consultation duty there, clarifying triggers, channels and safeguards, and taking note of
ongoing work at the Hague Conference on parallel proceedings.
• Whether to provide for universal jurisdiction. In the non-paper it was recalled that the
proposal mirrors the language of the “Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law”, which contemplate domestic incorporation or
implementation within their domestic law, of appropriate provisions for universal jurisdiction
where applicable under international law. While that qualifier reflects the contested nature of
universal civil jurisdiction, the added phrase “over human rights violations that amount to
international crimes” may be redundant, as the qualifier already limits the scope to certain
international crimes for which universal jurisdiction is recognized.
• Whether to include a forum of necessity rule. The incorporation of such a rule has been
valued as a useful jurisdictional rule where proceedings cannot be commenced in either the
21host or the home State. It has been recommended in several comparative initiatives but has
not yet been universally adopted under the argument that it may exceed what some domestic
systems permit. Therefore, a possible solution could be, to incorporate such rule in a balanced
manner that requires a sufficient connection with the alternative jurisdictional forum, the
unavailability of another forum in practice, and basic fairness guarantees—so as to balance
access to remedy and legal predictability.
• Whether to provide that no legal obstacles—including forum non conveniens—should
bar initiation of proceedings unless an adequate alternative forum is available that is
likely to provide a timely, fair and impartial remedy. It is recognized that forum non
conveniens can operate as a barrier to access to justice in business and human rights cases.
The current draft (article 9.3) addresses discretionary declinature in general terms, requiring
respect for victims’ rights, but does not refer explicitly to forum non conveniens and uses other
qualifiers instead. Some systems and instruments favour removing or tightly limiting forum non
conveniens where jurisdiction is grounded on domicile; while others rely on it to manage parallel
or related proceedings. Additionally, it must be recalled that UNGP N°26 provides that “States
should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms
when addressing business-related human rights abuses, including considering ways to reduce
legal, practical and other relevant barriers that could lead to a denial of access to remedy”. In
the related commentary, it is provided that legal barriers could arise, in particular, “where
claimants face a denial of justice in a host State and cannot access home State courts
regardless of the merits of the claim”. This thus requires a provision on connecting factors with
the case that look beyond the home and host states (as currently done in the reformulation
proposed for 9) and are broader than the traditional principles of jurisdiction (territoriality and
domicile), in cases where denial of justice would otherwise result. Therefore, taking into
account the different views and domestic current legal approaches, a possible solution was
considered in strengthening the provisions on the adjudication of jurisdiction through the
different connecting factors reflected in Article 9, as well as coordinating with any lis pendens
or case-management rules to reduce duplication while preserving effective access to remedy.
Objective of the suggested new language for the relevant provision(s):
Redraft or introduce a provision that addresses the potential abusive use of forum non conveniens
to deprive victims of a forum and avert a denial of justice, including through strengthening and
clarifying the connection factors for a State Party to assume jurisdiction. With that purpose and
taking into account the related proposals to Article 4, a new language is suggested to be located
either as Article 9.4 bis or even before, as Article 9.1 ter.
New suggested language:
Article 9.4 bis (or Article 9.1 ter): “The courts of any State Party shall have jurisdiction in respect
of a civil claim brought by a victim arising from a human rights abuse or violation covered under
this (Legally Binding Instrument) in order to avert a denial of justice if no other court is available,
the claimant cannot reasonably be expected to seize another court and there is a sufficient
connection to the State Party concerned. A sufficient connection consists in particular in:
(a) the presence or habitual residence of the claimant;
(b) the nationality of the claimant or the defendant;
(c) the presence of assets of the defendant;
(d) substantial activity of the defendant; or
(e) a civil claim based on an act giving rise to criminal proceedings in the court seized of those
proceedings, to the extent that that court has jurisdiction under its own law to entertain civil
proceedings.”
2212.
- Article 10
Current text in Updated draft legally binding instrument (LBI):
Article 10.1. “State Parties shall adopt such measures as may be necessary to ensure that no
limitation period shall apply in relation to the commencement of legal proceedings in relation to
human rights abuses which constitute the most serious crimes of concern to the international
community as a whole, including war crimes, crimes against humanity or crimes of genocide.;”.
Article 10.2. “In legal proceedings regarding human rights abuse not falling within the scope of
Article 10.1, each State Party shall adopt such measures as may be necessary to ensure that
limitation periods for such proceedings:
(a) are of a duration that is appropriate in light of the gravity of the human rights abuse;
(b) are not unduly restrictive in light of the context and circumstances, including the location where
the relevant human rights abuse took place or where the relevant harm was sustained, and the
length of time needed for relevant harms to be identified; and
(c)are determined in a way that respects the rights of victims in accordance with Article 4.”
Background of the relevant provision(s) and related proposals:
• Regarding article 10.1, the proposal to replace the expression “human rights abuses
which constitute the most serious crimes of concern to the international community as
a whole” with “human rights abuses which constitute crimes under international law”.
Both formulations are used in international law but with different implications. The former,
inspired by the Rome Statute, may be understood in broader terms, extending to acts such as
torture, enforced disappearance, slavery or corruption, while the latter, inspired by the Basic
Principles and Guidelines on the Right to a Remedy, may be read more narrowly as referring
only to genocide, crimes against humanity, war crimes and aggression. The way forward could
be to clarify the intended scope of the provision and the legal consequences of either
formulation, ensuring consistency with existing instruments as well as the Updated Principles
to Combat Impunity.
• Qualify the obligation by adding that measures shall be adopted “in accordance with
their obligations under international law”. This proposal may narrow the scope of the
provision, limiting it to genocide, war crimes, crimes against humanity and other crimes already
excluded from statutes of limitation under customary or treaty law. At the same time,
international practice shows a growing tendency to extend this exclusion to other gross
violations of human rights and serious violations of humanitarian law. Therefore, a balanced
approach could be to retain language that ensures both precision and flexibility, drawing on
instruments such as the 1968 Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes Against Humanity, the Rome Statute, the Convention on Enforced
Disappearance and the Draft Articles on Crimes Against Humanity.
• Extending the obligation to “cases of human rights abuses and violations where the
harm may be identifiable only after a long period of time”. As highlighted in the non-paper
circulated before the third intersessional thematic consultation towards the 11th session of the
OEIGWG, the introduction of such wording would significantly broaden the scope of article
10.1, applying the prohibition of statutes of limitation to cases beyond the most serious crimes.
Since article 10.2 already addresses such situations by requiring limitation periods to be
appropriate to the gravity of the abuse and not unduly restrictive, including in cases where harm
becomes identifiable only after a prolonged period, it may be preferable to address this issue
in that provision. This approach would maintain coherence while ensuring protection,
consistent with instruments such as the UN Convention against Corruption, the Declaration
and Convention on Enforced Disappearance, among others.
23Objective of the suggested new language for the relevant provision(s):
Adjust the provisions to clarify terms for the statute of limitation for certain human rights abuses,
period of time and applicable legal framework.
New suggested language:
Article 10.1. “State Parties shall adopt such measures as may be necessary to ensure that no
limitation period shall apply in relation to the commencement of legal proceedings in relation to
human rights abuses and violations which constitute the most serious crimes of concern to the
under international law community as a whole, including war crimes, crimes against humanity or
crimes of genocide.;”.
Article 10.2. “In legal proceedings regarding human rights abuse and violation not falling within
the scope of Article 10.1, each State Party shall adopt such measures as may be necessary to
ensure that limitation periods for such proceedings:
(a) are of a duration that is appropriate in light of the gravity of the human rights abuse or violation;
(b) are not unduly restrictive in light of the context and circumstances, including the location where
the relevant human rights abuse or violation took place or where the relevant harm was sustained,
and the length of time needed for relevant harms to be identified; and
(c) are determined in a way that respects and protects the rights of victims in accordance with
Article 4.”
13.
- Article 11.2
Current text in Updated draft legally binding instrument (LBI):
Article 11.2 “All matters of substance which are not specifically regulated under this (Legally
Binding Instrument) may, upon the request of the victim, be governed by the law of another State
where:
(a) (b) the acts or omissions have occurred or produced effects; or
the natural or legal person alleged to have committed the acts or omissions is domiciled.”
Background of the relevant provision(s) and related proposals:
• Delete Article 11.2. In the non-paper circulated before the third intersessional thematic
consultation, it was extensively observed that deleting this provision would leave the Legally
Binding Instrument only with article 11.1 related to procedural matters, and with no rule on the
applicable law for substantive matters that are not regulated by the instrument. While this
principle is widely recognized, it is rarely codified, and thus the real added value of article 11
lies in paragraph 2. Without it, article 11 would not move beyond existing private international
law practice. Nevertheless, it was also recognized the need to assess carefully the value of
introducing a choice-of-law provision specific to business and human rights, bearing in mind
the narrow scope of Article 11.2 (limited to matters “not specifically regulated under this
instrument”) which risks overlooking differences in domestic implementation even where the
treaty regulates a substantive matter; as well the broad scope of Article 8 and the variety of
ways in which legal liability can be implemented in domestic laws of State Parties. The absence
of a clear default governing law in article 11.2 also creates uncertainty, as systemic
interpretation suggests that “another State” may include the forum itself, thereby opening the
door to unpredictability, forum shopping and duplication.
• Add a reference to “affected persons and communities” alongside “victims,”. As it has
been the case for other similar proposals in the cluster of provisions from Articles 4 to 11 of the
Legally Binding Instrument, it is noted that such terminology is better addressed in the articles
on definitions, scope and implementation. Adding it only in article 11.2 could create uncertainty
as to who holds the right to request application of another law—claimants in court, or a broader
group whose interests may diverge.
24• Whether to subject the choice of law, upon the request of the victim, to the law of the
forum or to permission from the forum’s courts. It was observed that the current wording
is ambiguous, given the lack of clarity whether victims hold a right to choose or merely the right
to request. Comparative models may guide reflection, i.e. Article 7 of the Rome II Regulation
on the Law Applicable to Non-contractual Obligations which clearly empowers victims to
choose between the law of the place of damage and the law of the event giving rise to the
damage, while leaving the timing of that choice to the lex fori. Likewise, the 2010 UNEP
Guidelines for Environmental Justice, Article 13(2) provides that the timing is determined by
law of the forum. Other instruments provide alternative, more cautious approaches, without a
broad choice-of-law rule but a public policy safeguard: i.e. ILA Resolution No 2/2012 and
Council of Europe Recommendation CM/Rec(2016)3 which recommend that where the
designated law affords insufficient human rights protection, forum law or another more
protective law may be applied. This more limited model could also inform the drafting of article
10, particularly regarding statutes of limitation when the designated foreign law is unduly
restrictive.
Objective of the suggested new language for the relevant provision(s):
Improve the provision on the rule that allows the victim to choose the applicable substantive law
for their claim avoid ambiguity on the time of the choice.
New suggested language:
Article 11.2 “All matters of substance which are not specifically regulated under this (Legally
Binding Instrument) may, upon the request of the victim, and subject to the legal principles of the
State Party in which the case is adjudicated, be governed by the law of another State where:
(a) the acts or omissions have occurred or produced effects; or
(b) the natural or legal person alleged to have committed the acts or omissions is domiciled.”
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