Showing posts with label SOEs. Show all posts
Showing posts with label SOEs. Show all posts

Saturday, June 21, 2025

Submission Drafts Posted: "The Current State and Future Trajectories of HRDD Laws: New Legal Norms on Human Rights Due Diligence" (Larry Catá Backer and Claire Methven O'Brien, eds; forthcoming)

 

Pix credit Larry Catá Backer Tabula se Saint Miquel (13th Century Catalonia)

 

I am delighted to announce that we are able to make available a number of submission drafts of the contributors to the book,  The Current State and Future Trajectories of HRDD Laws: New Legal Norms on Human Rights Due Diligence, that  Claire Methven O'Brien and I are editing ,for expected publication with Routledge at the end of 2025 or beginning of 2026 (assuming everything goes smoothly.

This volume brings together some of the most innovative and forward thinking academics, practitioners, and commentators, from universities, non-governmental organizations, business, and government. Their objective, collectively, was to contribute to a deeper understanding on the emerging law of due diligence. More specifically, contributors were asked to explore, from their own perspective on the ways in which due diligence as a legal concept touches on the human rights and sustainability elements of economic activities whether undertaken by public or private organizations. In each case, and from a variety of perspectives, each of the contributors explores the rich possibilities of due diligence within the business and human rights environment. Each explores the level and forms of attentiveness (diligence) as a function of the quantity and focus requires (the diligence that is due) in a variety of context that are defined both by the legal environment in which it is embedded and the normative principles that due diligence is meant to fulfill. The structuring is important—while one cannot ask due diligence to do more than it is capable—conceptually—one can certainly exercise a judgment about the way that one applies values and societal objectives within its somewhat capacious possibilities. With that fundamental understanding of structure, form, character, possibility, and limitation, no really useful understanding of, or effective application of due diligence is possible. (Backer & O'Brien, Chapter 1, Introduction).

Foe those interested we have posted material to the book website. All materials can be accessed through the Book Project Homepage which includes information about the overall project (Introduction to the Project) and its background (Project Genesis and Background). Information, including video links may be found about the introducory workshop held in 2023 here: Workshop-Conference: The current state and future trajectories of human rights due diligence laws: New Legal Norms on Human Rights Due Diligence(6 September 2023; virtual)

Information about the book may be accessed through the link: Book: The Current State and Future Trajectories of HRDD Laws: New Legal Norms on Human Rights Due Diligence. These include Contents and Chapter AbstractsSelected Chapter Submission Drafts; and informaiton about our extraordinary group of Contributors.

Contributions include: 

 Chp 1: The Current State, and Future Trajectories, of Human Rights Due Diligence Laws —  Larry Catá Backer and Claire Methven O’Brien ACCESS SUBMISSION DRAFT HERE

Chp 2: Human Rights Due Diligence in the UNGPs – Larry Catá Backer ACCESS SUBMISSION DRAFT HERE

Chp 3: State Obligations and Corporate Responsibilities: The Notion of “Due Diligence” in the UN Guiding Principles on Business and Human Rights – Maria Monnheimer  ACCESS SUBMISSION DRAFT HERE

Chp 4: Lessons for Human Rights Due Diligence from Due Diligence in International Environmental Law – Sara Seck ACCESS SUBMISSION DRAFT HERE

Ch.5:  The Growing Relationship Between Tort Law and Human Rights Due Diligence – Carola Glinski ACCESS SUBMISSION DRAFT HERE

Chp 6: Can the French Law of Vigilance Apply to the Extraterritorial Violations of Indigenous and Human Rights? – Cannelle Lavite and Jérémie Gilbert ACCESS SUBMISSION DRAFT HERE

Chp 7: Supply Chain Due Diligence Law in Germany – Birgitte Spiesshofer ACCESS SUBMISSION DRAFT HERE

Chp 8: Mandatory HRDD in the E.U. – Claire Methven O’Brien

Chp 9: US Measures to Give Legal Effect to Human Rights Due Diligence – Rachel Chambers and Eric R. Biel

Chp 10: Horizontal Legislation: Cascading Due Diligence Through Model Contract Clauses– Susan Maslow, Patrick Miller, and David Snyder ACCESS SUBMISSION DRAFT HERE

Chp 11: What are the Lessons from Sectoral Approaches to Human Rights Due Diligence – Justine Nolan and Shelley Marshall ACCESS SUBMISSION DRAFT HERE

Chp 12: Human Rights Due Diligence and Disclosure Regimes – Rachel Chambers and Anil Yilmaz Vastardis ACCESS SUBMISSION DRAFT HERE

Chp 13: Human Rights Due Diligence and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct – Jernej Letnar Černič ACCESS SUBMISSION DRAFT HERE

Chp.14: The Corporate Sustainability Due Diligence Directive (EU) and Its Impact on Barriers to Remedy in Transnational Litigation – Lucas Roorda

Ch.15 Epilogue: Legalising Human Rights Due Diligence from the Present  into an Uncertain Future — Larry Catá Backer and Claire Methven O’Brien ACCESS SUBMISSION DRAFT HERE

The Book Table of Contents (with Abstracts) and links to selected submission drafts follow below as well. Draft Frontmatter may be accessed HERE.

Thursday, February 20, 2025

习近平:民营经济发展前景广阔大有可为 民营企业和民营企业家大显身手正当其时 [Xi Jinping: The development prospects of the private economy are broad and promising. It is the right time for private enterprises and private entrepreneurs to show their talents] and the Maturing of the two unwaverings [两个毫不动摇] policy

 

Pix credit here

 

习近平在民营企业座谈会上强调: (1) 民营经济发展前景广阔大有可为; (2) 民营企业和民营企业家大显身手正当其时 [Xi Jinping stressed the following at the private enterprise symposium: (1) The development prospects of the private economy are broad and promising; (2)  It is the right time for private enterprises and private entrepreneurs to show their talents] (习近平:民营经济发展前景广阔大有可为 民营企业和民营企业家大显身手正当其时 )

 

Pix credit here

 The General Secretary of the Communist Party of China presided over a symposium at which entrepreneurs of private enterprises were  invited to attend, provide their views and then hear what official accounts described as an important responsive speech by General Secretary Xi. The meeting received global attention, though the spin outside of China was slightly different than that within China. Notably the Wall Street Journal (China Changes Tack on Tech Titans) emphasized both the reactive nature of the meeting and the rehabilitation of a quite prominent business leader who had been disciplined in 2020. The coverage was not among the lead stories in the print edition, appearing only as the lead article on the "World News" section, p. A-12 alongside the story of airplane accident in Toronto.

Chinese leader Xi Jinping signaled to leading technology entrepreneurs and CEOs that he needed their help to deliver economic growth and self-sufficiency, more than four years after a crackdown by Beijing that dented confidence. Many of China’s most prominent business people gathered in Beijing to meet Xi on Monday, taking notes as Xi spoke from the front of the room, according to a video shown on state television.* * * The most striking face at the meeting was Jack Ma, co-founder and longtime leader of e-commerce and cloud-computing company Alibaba, who sat in the front row. The once-outspoken Ma has been largely absent from public view since he angered Xi with a speech in October 2020, and his companies were at the forefront of Beijing’s years-long tech-sector clampdown.

 The symposium, and the discussion by the General Secretary, however one frames the political narratives around it, was important if only to add clarity to the way that the policy of the two unwaverings [两个毫不动摇 (liǎnggè háobù dòngyáo)] is now being refined after the 3rd Plenum of the 20th Party Congress and its important developments of socialist (Chinese stye) modernization and high quality production within it (See 切实落实“两个毫不动摇” 习近平这样要求 [Xi Jingping Requires the Practical Implementation of the Two Unwaverings policy] the Chinese and English text of which follow below). It also suggests both the instrumental nature of markets, and even more the complementary-instrumental nature of the private sector.  It in this this respect that one might better appreciate the reporting of the General Secretary's participation in the event: "The General Secretary's concern and support for the private economy has a long history: "I have always supported private enterprises, and I have worked in places where the private economy is relatively developed. * * * General Secretary reiterated: "The basic principles and policies of the Party and the State for the development of the private economy have been incorporated into the socialist system with Chinese characteristics. They will be consistently adhered to and implemented. They cannot and will not change.""[“我是一贯支持民营企业的,也是在民营经济比较发达的地方干过来的。” * * * 总书记再次强调:“党和国家对民营经济发展的基本方针政策,已经纳入中国特色社会主义制度体系,将一以贯之坚持和落实,不能变,也不会变。”] ( “我是一贯支持民营企业的” ["I have always supported private enterprises"]).

That is significant for a number of reasons. Perhaps the most important of these is that it suggests the role that the private sector is to play in the elaboration of high quality production (in some sense a leading and risk taking role). The role is essentially unchanged though now guided by 3rd Plenum goals and forms. And it remains strikingly different from current manifestation of European Marxist-Leninism in which the private sector is understood as useful only within strictly contained consumer market fields. Cuba is perhaps the best example of that old European approach in contemporary guide. Perhaps another touches on the way that this role is to be undertaken in fulfillment of the larger policy objectives of socialist modernization (and the challenge of the current general contradiction), to which the innovations of the private sector will be utilized by the state sector as the leading force of deploying the nation's productive forces in the service of and under the leadership and of the CPC.  If the private sector is meant ot serve as innovation incubators, it is also meant to be built so that its innovations (and perhaps its operations) can be both more closely aligned with larger state owned or controlled enterprises, or be willing to yield productive innovation to them for more efficient elaboration on a comprehensive basis  through the more intimate connections between CSOEs and State-Party organs. Lastly, the symposium points to the specific fields of economic activity in which State organs, under Party leadership and guidance are emphasizing as of significance to the basket of development through which a guided Socialist Modernization is realized.  That last point ought to be of the greatest significance to foreigners with whom Chinese enterprises engage or compete. Particularity relevant may be the way in which thew working styles, division of authority (and markets), and points of emphasis and subsidy will shape the nature, character and quantum of Chinese overseas investments.

The text of the summary report, 习近平:民营经济发展前景广阔大有可为 民营企业和民营企业家大显身手正当其时  [Xi Jinping: The development prospects of the private economy are broad and promising. It is the right time for private enterprises and private entrepreneurs to show their talents], along with the reporting on the seminar ( “我是一贯支持民营企业的” ["I have always supported private enterprises"]), follow below in the original Chinese and in a crude English translation.

Pix credit here (Xi says it is wrong to 'bad mouth' China's state forms. . . but country needs private sector as well; Chinese President says state owned enter`rises should grow stronger, better, larger, byt that reforms show private enter`rises could 'boost their confidence' 2018)

Additional brief reflections:

1. Here is the deal envisioned through the two unwaverings [两个毫不动摇 (liǎnggè háobù dòngyáo)] policy:

"We hope that private enterprises and private entrepreneurs will have the ambition to serve the country, focus on development, abide by the law and operate well, and promote common prosperity by getting rich first, so as to make new and greater contributions to promoting Chinese-style modernization. [希望广大民营企业和民营企业家胸怀报国志、一心谋发展、守法善经营、先富促共富,为推进中国式现代化作出新的更大的贡献。]

The ambition of private enterprise ought to be tied to the ambition of the State, and the ambition of the State is the manifestation of the guidance and leadership of the CPC; it would follow that the ambition of the private sector must align completely with the ambition of the CPC as it is manifested in its construction of the Socialist Market Economy. Private enterprise serves the country by serving the CPC. Considered fully, one can understand this as a further refinement of Sange Daibiao (the "three representations") within the framework of post 3rd Plenum development of the conception of socialist modernization as the policy engine around which the state apparatus is constructed under the guidance and direction of the CPC (considered in a constitutional context during the leadership of Hu Jintao in The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism). It is within this framework that the two track of public and private enterprise form lanes that together constitute an important element of the pathway through which the Socialist path can be moved correctly. That, anyway, is one way of understanding the theory.

2. Here the the core objective for economic structuring--achieving socialist modernization correctly within the cognitive cage of New Era Chinese Marxist-Leninism. 

"The Party and the State adhere to and improve the basic socialist economic system, unswervingly consolidate and develop the public economy, unswervingly encourage, support and guide the development of the non-public economy; the Party and the State ensure that all kinds of ownership economies use production factors equally in accordance with the law, participate in market competition fairly, and are equally protected by law, promote the complementary advantages and common development of various ownership economies, and promote the healthy development of the non-public economy and the healthy growth of non-public economic personnel." [党和国家坚持和完善社会主义基本经济制度,毫不动摇巩固和发展公有制经济,毫不动摇鼓励、支持、引导非公有制经济发展;党和国家保证各种所有制经济依法平等使用生产要素、公平参与市场竞争、同等受到法律保护,促进各种所有制经济优势互补、共同发展,促进非公有制经济健康发展和非公有制经济人士健康成长。]
That cognitive cage starts from the presumption that private enterprises are utilizing productive forces--and the means of production--which are State assets, only by permission of those responsible for their utilization. These means of production do not lose their public character even when they are permitted to be used to enhance production within private enterprises.  It is in this way that one can understand both the notion of complementarity and of the overall public nature of the socialist market economy.  That is, that the economy, driven my markets, is in turn driven by and formed to maximize the fulfillment of, the public objectives which are a central element of economic activity. To those ends, and within those boundaries, individuals and firms may utilize markets and market practices. But socialist markets are goal oriented markets. And the goals are articulated by the CPC and internationalized through the state apparatus.  And that, in turn, suggests the risk allocation elements of the "deal."  Private entrepreneurs may be allowed to "get rich" (to the extent permitted) as a incentive for activity with respect to which they are the principle risk bearers. The risk controllers are the CPC and the State apparatus. The means of controlling risk is regulation. Here one encounters the critical element of complementarity--the fundamental allocation of risk and risk bearing between public actors and private entrepreneurs.  In the wake of the 3rd Plenum development of socialist modernization and high quality production concepts driven by innovation, the State profits even more. Effectively complementarity suggests that private sector activity drives higher risk based innovation, which it s pays off rewards the risk takers materially (they get richer) and the State immensely more. The State benefits from the arrangement by directing the private sector to fields of economic activity where higher risk innovation is in the national interest (for example today in the tech sector). Where the risk taking pays off and innovation produces new products, processes, etc., the State can then profir form it by deploying it nationally through its state sector enterprises.  Where risk produces no reward, the private sector bears its costs (loss of investment etc.).

3. This is possible only if those who may utilize the means of production undertake that activity strictly under the guidance of the CPC and the State--and that guidance is given form though law/rule/regulation/oversight. It is in this sense that one can better situate the focus on legality that is attached to and becomes a defining feature of private enterprise in socialist markets. 

"At the same time, we must realize that China is a socialist country under the rule of law, and the illegal acts of enterprises of all ownership types cannot be evaded." [中国特色社会主义制度具有多方面显著优势,社会主义市场经济体制、中国特色社会主义法治体系不断健全和完善,将为民营经济发展提供更为坚强的保障。]
Socialist legality, in that sense, then, can be understood as the means through which the guidance of the CPC in the utilization of the means of production by private sector enterprises, can be made mandatory.  This is not a uniquely Leninist practice.  It has become the standard approach  in liberal democratic regimes associated both with the rise of a compliance based regulatory regime for enterprises and in the way that markets driven international soft law is hardened through regulation that is meant  to enhance policy guidance from liberal democratic political organs. An example is the move toward regimes of mandatory human rights due diligence in enterprise management of behaviors within their global supply chains.

4. Serving the country: that is the essence of the deal of complementarity, and the expectations built into the permission for private sector firms to utilize the means of production:

" The majority of private enterprises and private entrepreneurs should be full of passion for entrepreneurship and serving the country, constantly improve their ideals, cultivate a sense of home and country, think of their roots and progress, promote the entrepreneurial spirit, concentrate on strengthening, optimizing and expanding enterprises, and firmly become builders of socialism with Chinese characteristics and promoters of Chinese-style modernization." [广大民营企业和民营企业家要满怀创业和报国激情,不断提升理想境界,厚植家国情怀,富而思源、富而思进,弘扬企业家精神,专心致志做强做优做大企业,坚定做中国特色社会主义的建设者、中国式现代化的促进者。]
Passion is expected, risking taking is expected, profit is the incentive, and adhering to the direction of the State is the responsibility of the private sector.  It is in this sense that complementarity assumes its character--not as add on, but as an incubator on a vast scale, and a gap filler, where the direct intervention of the State is inefficient.

5. The public character of the private sector is understood and embedded in the behavior expectations of private enterprises. Yet this is nothing new--charitable expectations have deep historical roots.  And that, too, aligns with current New Era policies to reach back into history to retrieve and apply ancient practices in contemporary form within the normative parameters of New Era Chinese Marxist-Leninism.

"We must actively fulfill our social responsibilities, actively build harmonious labor relations, do a good job in ecological environmental protection, participate in public welfare and charity to the best of our ability, and give more love to the society." [要积极履行社会责任,积极构建和谐劳动关系,抓好生态环境保护,力所能及参与公益慈善事业,多向社会奉献爱心。]
In this case, private enterprises, like public enterprises, are understood to be instruments of public policy. Where that instrumental quality can be directly deployed by State organs  in their (ownership) control over state enterprises, private enterprises may be managed through deepening layers of regulation, compliance mandates and oversight (effectively the European model but with Chinese characteristics in the broadest case, or otherwise an interesting convergence in regulatory sensibilities).

6. And within the context of the two unwaverings [两个毫不动摇] within the Socialist Modernization of the means of production--of economic, social, cultural and political activity--  the CPC itself, and through them the state apparatus, must also continue to innovate its own productive capacities and meet the challenges of the current general contradiction through the mechanisms of public and private economic activity.

"Xi Jinping emphasized that some of the difficulties and challenges currently facing the development of the private economy are generally in the process of reform and development, industrial transformation and upgrading. They are local rather than overall, temporary rather than long-term, and can be overcome rather than unsolvable. We must unify our thoughts and actions with the judgment of the Party Central Committee on the domestic and international situation, and with the decision-making and deployment of the Party Central Committee on economic work, see the future, see the light, and see the future in difficulties and challenges, maintain development determination, enhance development confidence, and maintain the spirit of fighting and winning." [习近平强调,当前民营经济发展面临的一些困难和挑战,总体上是在改革发展、产业转型升级过程中出现的,是局部的而不是整体的,是暂时的而不是长期的,是能够克服的而不是无解的。要把思想和行动统一到党中央对国内外形势的判断上来,统一到党中央对经济工作的决策部署上来,在困难和挑战中看到前途、看到光明、看到未来,保持发展定力、增强发展信心,保持爱拼会赢的精气神。]
Self-revolution (自我革命) and CPC discipline, then, becomes the core challenge for the vanguard in a system that is wholly dependent on the correct operation of the CPC within its own institutional spaces. The essence of the relationship is dialectical in two respects.  The first is external--the dialectics between private enterprises and the CPC itself and mimics the mass line. That was the essence of the Symposium and the nature of the way the meeting was arranged. The second is internal--(习近平:健全全面从严治党体系 [Xi Jinping: Improve the system of comprehensive and strict governance of the Party]). Its essence is straightforward 

Since the 18th National Congress of the Communist Party of China, we have unswervingly promoted the comprehensive and strict governance of the Party, achieved a series of theoretical innovations, practical innovations, and institutional innovations, built a comprehensive and strict governance system for the Party, and opened up a new realm of self-revolution for the century-old Party. [党的十八大以来,我们坚定不移推进全面从严治党,取得一系列理论创新、实践创新、制度创新成果,构建起全面从严治党体系,开辟了百年大党自我革命新境界。].




Wednesday, July 31, 2024

2024 UN Forum on Business and Human Rights [第十三届联合国工商业与人权论坛] (25-27 November 2024)--Provisional Program, Information on Participation, and Registration

 

Pix credit here

 

 I am delighted to pass along the announcement of the provisional program and registration links for the 2024 UN Forum on Business and Human Rights to take place in Geneva 25-27 November 2024.  The announcement (in English, FrançaisEspañol, and 中文) follow below. They each include information about the Forum, participation and registration.

The theme for the 2024 Forum is  focused on the elaboration of an objective mentioned in the Commentary to UNGP Principle 3 that has taken on a life of its own: "Realizing the “Smart Mix of Measures” to protect human rights in the context of business activities." The Concept Note elaborating on the Forum theme follows below and may be accessed HERE

My commentary to UNGP Principle 3 (and the "smart mix of measures" objective (forthcoming as Chapter 7 of The UN Guiding Principles for Business and Human Rights: A Commentary (OUP  forthcoming), may be accessed HERE; summary and introduction HERE.   

The provisional program also follows below and may be accessed HERE.

 

Saturday, July 27, 2024

Part 10 (Part II, Chapter 9 UNGP: State Duty to Protect Human Rights, Operational Principles II (The State-Business Nexus (UNGP ¶¶ 4-6))--Vetting the Discussion Draft: "The United Nations Guiding Principles for Business and Human Rights: A Commentary

 

Pix credit here (Pirates of the Caribbean 2007)


In principle, inducing a rights-respecting corporate culture should be easier to achieve in State-owned enterprises (SOEs). Senior management in SOEs is typically appointed by and reports to State entities. Indeed, the State itself may be held responsible under international law for the internationally wrongful acts of its SOEs if they can be considered State organs or are acting on behalf, or under the orders, of the State. Beyond any legal obligations, human rights harm caused by SOEs reflects directly on the State’s reputation, providing it with an incentive in the national interest to exercise greater oversight. Much the same is true of sovereign wealth funds and the human rights impacts of their investments. (Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Protect, Respect and Remedy: a Framework for Business and Human Rights A/HRC/8/5 (7 April 2008)

I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version.  All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.

Part I (On the Making of the UNGP), organized in five chapters, introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement of the UNGP. Parts II through V then consider in detail the text and interpretation of the substantive provisions of the UNGP. Part II considered the UNGP's General Principles; Part III examines the State duty to protect human rights (UNGP Principles 1-10); Part IV then addresses commentary to the corporate responsibility to respect human rights (UNGP Principles 11-24); and Part V considers the remedial principles (UNGP Principles 25-31). 
 
The UNGP divides the principles for each of these Pillars into "foundational" and "operational" principles.  The former reflects the conceptual framework for each of the Pillars developed through the focus on the principled part of principled pragmatism exploration of the SRSG's initial mandate and culminating in the SRSG's 2008 Reports; the latter reflects the second mandate's direction to operationalize the conceptual framework, which focused on the pragmatism part of principled pragmatism that drove the SRSG's work throughout the mandates. The operational principles are then subdivided into a number of different categories of focus. 

 This Post continues the exploration of the State duty to protect human rights.  In a prior post the two foundational principles (UNGP Principles 1 and 2) were examined (see here). In this post we start consideration of the the first of the four sets of functionally differentiated operational principles into which the operational principles of the State duty to protect is divided. These include “General State Regulatory and Policy Functions,” (UNGP Principle 3); “The State-Business Nexus;” (UNGP Principles 4-6); “Supporting Respect for Human Rights in Conflict-Affected Areas,” (UNGP Principle 7); and “Ensuring Policy Coherence,” (UNGP Principles 8-10).

Chapter 9's focus is on UNGP Principles 4-6, the "The State-Business Nexus" which aggregates a related set of expectations when the State acts not as a regulator but veers into and sometimes wholly embraces participation in markets. Here one encounters issues of hybridity and polycentricity. These principles seek to rationalize the role of the State and the exercise of State duty when the State is itself an owner/controller/facilitator/insurer of a regulatory object (the enterprise), when the State seeks to provide services through non-State third parties, and when the State engages in commercial transactions.  In each of these cases the State is not operating as a regulator, but rather as an owner or participant. In these contexts, the State does not abandon the mandatory or discretionary elements of its State duty to protect human rights, but it exists in an environment in which it is expected to deploy the tools and behaviors of an actor to ensure that its own actions as well as those of its business relations respect human rights.  How one gets there becomes  nuanced, complicated, and to some extent, a function of differentiating approaches to the exercise of discretion in developing and applying approaches to rights  based behaviors. 

 
Pix credit here (Marie Antoinette goes on a shopping spree)
UNGP Principles 4-6, unlike UNGP Principle 3, focuses on the State's market power toolkits: direct  or indirect control or ownership, guidance (through facilitation/investment), capacity building (promotion and narrative building), and private law (contract) measures. The State can, and ought to, participate as a market participant as it likes or is permitted with respect to specific ownership/control relationships or transactions with specific actors for specific goods and services, but it is expected in that role to fulfill its duty to protect human rights by the means afforded market actors (with the exercise of a general state regulatory power always in the background).  UNGP Principle 4 focuses on the relationship of the State with its owned or controlled enterprises, or those State instrumentalities that facilitate economic activity by operational enterprises.  UNGP Principle 5 applies to the State’s contractual relationships with enterprises with which it contracts to provide services, especially with respect to those services ordinarily or traditionally provided by a public entity. UNGP Principle 6 applies to contractual relationships with enterprises form which it purchases goods or services, whether those contracts are characterized and public to private in character. Each are aspects of State insertion into markets as participant rather than regulator, but in different ways. 
 
Each intervention in markets, in turn, requires a distinct set of additional actions that may be expected not where the State engages generally as a regulator but in specific instances as a participant in the activities it regulates. UNGP4  is based on an expectation that States will "take additional steps" to protect against human rights abuse when in a control/ownership/facilitation/insurer relationship with business enterprises; in contrast UNGP Principle 5 expresses an expectation that States should "exercise adequate oversight" when contracting with third parties for the provision of services.  And UNGP Principle 6 creates an expectation that States should "promote" respect for human rights with the firms with which it engages in commercial transactions. The different standards--"Take additional steps;" "exercise adequate oversight", and "promote respect"--each may be expressed in quite distinct ways but share in common the expectation that State may invoke the methods of private actors in these relationships and for these transactions with respect to the specific entities with which the State has relationships.
 
At one level it appears to constitute a bridge between the 1st and 2nd Pillars. On another level it suggests the essential polycentricity of the UNGP—in this case where the State is expected, simultaneously to undertake its duty as a public institution, while it also attempts to undertake the necessary expectations of respecting human rights as it undertakes actions as a participant in production. At one end of the spectrum of possible inter-relation, it is possible to extend the State’s toolkit to its private relationships. At the other end, it is possible to develop a firm division between the way in which the State fulfills its duty as a public body and the way in which the State conforms its behaviors to the expectations of the corporate respect for human rights. Between the two the UNGP Principles 4-6 offer a substantial amount of flexible options.
 
The Chapter 9 discussion draft may be accessed directly HERE (where revisions earlier chapters may also be accessed). The text of the draft of Chapter 9 as of the time of this posting also follows below along with its table of contents.

Pix credit here


 
9.1 Introduction—The State Business Nexus
9.2 UNGP Principle 4
    9.2.1.UNGP Principle 4: Text
    9.2.2.UNGP Principle 4: Commentary on Text
    9.2.3 UNGP Principle 4: Official Commentary
    9.2.4 UNGP Principle 4: Authoritative Interpretation/Commentary
         9.2.4.1 The Travaux Préparatoires and the 2010 Draft
         9.2.4.2 Pre-Mandate Text
    9.2.5 Other Glosses
    9.2.6 Applications
9.3 UNGP Principle 5     
9.3.1. UNGP Principle 5: Text
    9.3.2.UNGP Principle 5: Commentary on Text
    9.3.3 UNGP Principle 5: Official Commentary
    9.3.4 UNGP Principle 5: Authoritative Interpretation/Commentary
         9.3.4.1 The Travaux Préparatoires and the 2010 Draft
         9.3.4.2 Pre-Mandate Text
    9.3.5 Other Glosses
    9.3.6 Applications
9.4 UNGP Principle 6
    9.4.1. UNGP Principle 6: Text
    9.4.2.UNGP Principle 6: Commentary on Text
    9.4.3 UNGP Principle 6: Official Commentary
    9.4.4 UNGP Principle 6: Authoritative Interpretation/Commentary
         9.4.4.1 The Travaux Préparatoires and the 2010 Draft
         9.4.4.2 Pre-Mandate Text
    9.4.5 Other Glosses
    9.4.6 Applications
9.5 Conclusion

Wednesday, April 17, 2024

国务院国资委党委: 不断创新发展中国特色国有资产监管体制 [Party Committee of the State-owned Assets Supervision and Administration Commission of the State Council: Continuously innovate and develop the state-owned assets supervision system with Chinese characteristics]

 

图为2024年3月14日,青海盐湖工业股份有限公司钾肥分公司的采盐船在盐湖作业。 新华社记者 陈杰/摄 The picture shows a salt mining ship of the Potash Fertilizer Branch of Qinghai Salt Lake Industry Co., Ltd. operating in the salt lake on March 14, 2024. Xinhua News Agency reporter Chen Jie/photo

 

Issue 8 (224) of the Journal Qiushi 《求是》2024(8) included an article worth a little study. In  国务院国资委党委:   不断创新发展中国特色国有资产监管体制 [Party Committee of the State-owned Assets Supervision and Administration Commission of the State Council: Continuously innovate and develop the state-owned assets supervision system with Chinese characteristics] one has a quite interesting statement about the way in which state assets, organized as State Owned or Controlled Enterprises are at once embedded within Party governance structures, state oversight apparatus, and complementary socialist market operations. That is how Chinese SOEs must serve as the economic expression of vanguard leadership, managed through state organs , but which are, at the same time, to be run efficiently and make money, while at the same time contributing to core vanguard objectives--among them innovation, high quality development, ecological civilization, and integrity.

That sets up some binaries. For example, on the one hand

新征程上,国有企业承担的责任更加重大、使命更加光荣,必须坚决把加强党的领导党的建设贯穿国有资产监管全过程、各方面,切实把政治优势、制度优势转化为发展优势、竞争优势,推动国有企业更好地成为我们党赢得具有许多新的历史特点的伟大斗争胜利的重要力量。On the new journey, state-owned enterprises bear more important responsibilities and more glorious missions. They must resolutely strengthen party leadership and party building throughout the entire process and all aspects of state-owned assets supervision, and effectively transform political and institutional advantages into development and competitive advantages, to promote state-owned enterprises to better become an important force for our party to win the victory of the great struggle with many new historical characteristics.

And on the other:

坚持社会主义市场经济改革方向,持续深化政企分开、政资分开。坚持社会主义市场经济改革方向,是国有企业改革始终不能动摇的重大原则, Adhere to the direction of socialist market economic reform and continue to deepen the separation of government from enterprises and the separation of government from capital. Adhering to the direction of socialist market economic reform is an important principle that cannot be shaken in the reform of state-owned enterprises.

The bridge, it seems, is bound up in the leadership of the vanguard.  And that leadership at the level of the enterprise, is embedded in the SOE Party Committee, but perhaps more importantly in the alignment of party, supervision, and business functions within the bodies of a substantially overlapping leading group.

坚持服务国家战略的责任担当,推动国有企业实现经济责任、政治责任、社会责任相统一。国有企业是中国特色社会主义经济的顶梁柱,必须自觉服务党和国家工作大局。推动国有企业坚决落实国家重大战略,是国有资产监管工作的重要职责。Adhere to the responsibility of serving the national strategy and promote the unity of economic, political and social responsibilities of state-owned enterprises. State-owned enterprises are the backbone of the socialist economy with Chinese characteristics and must consciously serve the overall work of the party and the country. Promoting state-owned enterprises to resolutely implement major national strategies is an important responsibility of state-owned assets supervision. 

The essay follows below in the original Chinese and in a crude English translation.

 

Monday, June 05, 2023

Seminar; Hong Kong University of Science & Technology: "Doing Business with SOEs – Examining Economic and Regulatory Risks"

 


I am delighted to pass along  information about a quite exciting seminar, Doing Business with SOEs – Examining Economic and Regulatory Risks, to be held Monday, 12 June 2023 at at 10:30 am - 12:00 pm (Hong Kong time, GMT +8); Business Central, 15/F, The Hong Kong Club Building, Central, Hong Kong

This event is jointly organized by HKUST Greater Eurasia Research Center (GEAR) and the Young Members Group, the Chartered Institute of Arbitrators (East Asia Branch) (CIArb (EAB) YMG)

Zoom (click here to register)

The seminar organizers describe the event as follows:

The seminar explores the implications of doing business with state-controlled enterprises (SCEs) by assessing the regulatory complexity and the normative tensions triggered by the rise of SCEs as actors in international law. The seminar is based on the book “Regulation of State-Controlled Enterprises: An Interdisciplinary and Comparative Examination” published by Springer in 2022.

The seminar will cover the following topics:

  • Role of SOEs as investors in key sustainable development sectors
  • Significance of SOEs’ investments in the US-China hegemonic rivalry
  • The tightening of national security review of investments and the role of sanctions
  • Challenges in regulating SOEs in free trade and investment agreements
  • SOEs and alternative dispute resolution

 

 

A number of the contributors to the marvelous book  will be speaking.If one is at all interested in core issues of SOEs this ought top ber an event that should not be missed.

The list of speakers follows along with seminar logistics and information.

Wednesday, February 22, 2023

The Problem of the State Owned Enterprise as the Owner of Press Organs in European Liberal Democracy: The Norway Pension Fund Global Places Polski Koncern Naftowy Orlen SA Under Observation

 

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On 22 February 2023, Norges Bank announced its decision to place the company Polski Koncern Naftowy Orlen SA, a Polish state owned enterprise,  be under observation. The basis for this determination was uneasiness about indirect Polish state ownership of a majority of press organs in Poland, through the acquisition, by Orlen, of Polska Press. The uneasiness was due to what was an unacceptable risk that the company is contributing to human rights violations in the form of indirect state interference with civil and political rights, as well as cultivating a relationship that might undermine the democratic character of the state. These worries were elaborated in the Ethics Council’s recommendation here, in which they concluded:

The Council notes that several actors have expressed grave concerns about the political independence of Polska Press’s publications in the runup to the 2023 elections. Critics fear the publications will be used as mouthpieces for those currently in power. The extent to which this risk may materialise is nevertheless uncertain. Due to the uncertainty attaching to developments forward in time, the Council recommends that the company be placed under observation. (Council Recommendation, p. 13).

The effects were augmented because the acquisition in this case capped something like a mini buying spree of press organs by Orlen in Poland.

In 2019, before acquiring Polska Press, Orlen purchased 66 per cent of the shares in Sigma BIS, another media and advertising company. In 2020, Orlen also acquired Ruch group, a nationwide news outlet that also has distribution in the wholesale and retail sectors. Ruch’s network comprises around 2,400 newsagents (kiosks), making it the largest newspaper distributor in Poland. (Council Recommendation, p. 5).

The conclusion was buttressed by a number of factors: (1) substantial turnover of personnel; (2) criticisms by university  groups ; (3) concerns expressed by Polish and European journalists and civil society organisations; (4) the issues raised during the course of a failed effort by the Polish Commissioner for Human Rights to have the competition authorities reconsider the approval of the acquisition because "the authorities did not assess whether the acquisition would pose a potential threat to the media’s independence and diversity" (Council Recommendation, p. 7); (5) "numerous allegations have been made concerning the exercise of political influence over the editorial content of Polska Press’s newspapers." (Ibid., p. 9). 

In its defense, Orlen sought refuge in the traditional safe harbor for state activity in private markets--that it was engaged in such activity for purely and traditional commercial reasons--that is to make money.  

Orlen has further explained that the acquisition was a purely commercial transaction that fits well with the company’s strategic plans to strengthen retail sales and is in line with global trends. The company also sees the acquisition in connection with its purchase of Sigma Bis and Ruch. Furthermore, the company describes plans to develop big data tools to as it can now collect information on 60 per cent of internet users in Poland. This will enable it to create new business models and provide better geographical coverage and personalised offerings to selected customers. (Council Recommendation, p. 11).

Interestingly, though the Ethics Council was quick to dismiss this line of defense, the did so without any consideration of the OECD Guidelines on Corporate Governance of State-Owned Enterprises (2015). Useful in that respect might have been Principle III.A. ("There should be a clear separation between the state’s ownership function and other state functions that may influence the conditions for state-owned enterprises, particularly with regard to market regulation."). More importantly, it is not clear that the acquisition might have been consistent with the general requirements of Principle I, the official Annotation to which note:

The state exercises the ownership of SOEs in the interest of the general public. It should carefully evaluate and disclose the objectives that justify state ownership and subject these to a recurrent review. The members of the public whose government exercises the ownership rights are the ultimate owners of SOEs. This implies that those who exercise ownership rights over SOEs owe duties toward the public that are not unlike the fiduciary duties of a board toward the shareholders, and should act as trustees of the public interest. High standards of transparency and accountability are needed to allow the public to assure itself that the state exercises its powers in accordance with the public’s best interest.
In OECD countries, the rationales for establishing or maintaining state enterprise ownership typically include one or more of the following: (1) the delivery of public goods or services where state ownership is deemed more efficient or reliable than contracting out to private operators; (2) the operation of natural monopolies where market regulation is deemed infeasible or inefficient; and (3) support for broader economic and strategic goals in the national interest, such as maintaining certain sectors under national ownership, or shoring up failing companies of systemic importance. (OECD-SOE, supra, p. 29)

A missed opportunity. Instead the Ethics Council appeared to express a preference for a sui generis rule applicable to the ownership of speech management or producing organs when thy are owned or controlled by the state.

In light of the volume of publications that have been affected by the acquisition, combined with the crucial importance of press freedom for a number of other rights, the Council has, in this case, assessed whether the company can be said to contribute to systematic norm violations. As in previous recommendations, the Council has attached importance to the fact that these are not merely isolated incidents but that the norm violations may constitute a pattern of behaviour. The Council has also accorded weight to the fact that the company seems to deliberately be operating at the limits of accepted norms (Council Recommendation, p. 12).

It might have easier if the Ethics Council had adopted a rule of mandatory separation. Given the thrust of the subtext of their decision, it appears that the Ethics Council was lurching toward but was unable to muster the courage to declare a bright line rule of the incompatibility of liberal democracy with state ownership of press organs.  The result would have been to limit that state to transparent propaganda and information services, but to forbid it form controlling press or news organs which would remain as an institutional vessel for the elaboration of civil and political rights.  

That leaves only the matter of observation. In this case it is not clear what observation means; nor is it clear how observation is tied to the role of the Pension Fund Global as a governmental shareholder of a state owned enterprise, the interference of which touches on the legitimacy of the sovereign constitution of another state. That is a difficulty here.  Ordinarily such matters would be taken up at the EU level or as a matter of inter-governmental dialogue. Yet because both the Norwegian Kingdom and the Polish Republic are operating through entities in private markets, the traditional performance of inter-state relations within international normative constraints must be manifested some other way.  What that way is in this case remains murky.  Another missed opportunity.

Wednesday, October 12, 2022

Announcing Start of a New Project: "The Current State and Future Trajectories of Human Rights Due Diligence Laws--New Legal Norms on Human Rights Due Diligence" (Larry Cata Backer and Claire Methven O’Brien (eds)

 


 Claire Methven O’Brien and I are delighted to announce the commencement of a new project:  The current state and future trajectories of human rights due diligence laws. 

The object of this project is to bring together young and established scholars from a variety of fields to examine due diligence from different perspectives. Due diligence is an ancient concept with roots in societal and cultural norms and expectations. It has been realized in law, especially with respect to systems of assigning and shifting risk of loss in private law and in the development of norms of corporate governance. Since the endorsement of the UN Guiding Principles for Business and Human Rights (2011), human rights due diligence has captured an increasingly critical place in the institutionalization of frameworks for embedding human rights, and now sustainability, norms in economic activity. Composed of four core elements—identification and assessment, integrating, tracking, and communicating—due diligence has spilled far beyond its original role as the means through which business entities could comply with their markets driven and state managed responsibility to respect human rights. Today, due diligence plays an important role in compliance, in the operation and development of systems of prevention, mitigation, and remedy. It has acquired a normative dimension as well—embedding principles of responsibility  through the forms and premises of the diligence that is due and its consequences.  Most recently, states have begun to draw on the principles and modalities of due diligence to develop state based due diligence legal orders.

We turn first to the examination of the way that states have begun to draw on due diligence principles and modalities. To that end we were excited to be able to bring together some of the most innovative and forward thinking academics, practitioners, and commentators, from universities, non-governmental organizations, business, and government to collectively contribute to a deeper understanding of the emerging law of due diligence, especially as it touches on the human rights and sustainability elements of economic activities whether undertaken by public or private organizations.  The abstract gives a sense of its scope and direction :

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Since its first authoritative transposition into the regulatory context of business and human rights, the concept of due diligence has proven to be a remarkably resilient and versatile instrument. It has provided the structuring for the process of embedding human rights and then sustainability issues (including climate change) into the compliance and accountability regimes of business. It has also become the most important means for states, international actors, and others to develop a basis for a normative component to due diligence, one that aggregates the forms of due diligence with its purpose. The concept of due diligence also bridges a number of regulatory gaps–between public and private law systems; between markets driven societal behavior management and regulatory and publicly administered systems of compliance and accountability; and between international hard and soft rule making and the constitutional systems of states. The essays are divided into four broad sections, The first focuses on the elaboration of a conceptual framework. The second explores the operationalization of this conceptual foundation in and beyond the UN Guiding Principles for Business and Human Rights. Section three then shifts the lens to a deeper exploration of contemporary efforts to legalize due diligence. The volume ends with a consideration of tendencies, tensions, opportunities, and challenges in the legalization of corporate human rights due diligence.

We hope to publish these engagements in a volume: New Legal Norms on Human Rights Due Diligence, to be edited by Larry Catá Backer and Claire Methven O’Brien. 

Contributors include (1) Larry Catá Backer (Pennsylvania State University, W. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs); (2) Rachel Chambers (University of Connecticut Business School, Assistant Professor of Business Law; Teaching Business and Human Rights Forum, Co-Director); (3) Jeremie Gilbert (University of Roehampton Law School, Professor of Human Rights Law; Roehampton Climate Network, Founding Member); (4) Cannelle Lavite (European Center for Constitutional and Human Rights, Co-Director of Business and Human Rights); (5) Jernej Letnar Černič (New University (Ljubljana, Slovenia), Professor of Constitutional and Human Rights Law, Faculty of Government and European Studies); (6) Shelley Marshall (RMIT University, Associate Professor, College of Business and Law; RMIT Business and Human Rights Centre, Director);  (7) Olga Martin-Ortega (University of Greenwich, Professor of International Law, School of Law & Criminology; Business, Human Rights, and Environment Research Group, Leader); (8) Susan Maslow (Antheil Maslow & MacMinn, LLP, Co-founder and Partner); (9) Claire Methven O’Brien (University of Dundee, Lecturer in Law; Danish Institute for Human Rights, Senior Researcher); (10) Patrick Miller (P Miller Legal Services, Founding Attorney); (11) Maria Monnheimer (Richterin am LG Hamburg); (12) Justine Nolan (University of New South Wales, Professor, Faculty of Law and Justice, School of Global and Public Law; Australian Human Rights Institute, Director); (13) Lucas Roorda (Utrecht University, Assistant Professor Faculty of Law, Economics, and Governance); (14) Sara Seck (Dalhousie University, Associate Professor of Law, Yogis and Keddy Chair in Human Rights Law, Associate Dean, Research); (15) David Snyder (American University, Professor of Law); (16) Birgit Spieshofer (University of Bremen, Professor of Law; Dentons Europe LLP, Europe Chief Sustainability & Governance Counsel); (17) Carlos Manuel Vasquez (Georgetown University Professor of Law); (18) Anil Yilmaz Vastardis (University of Essex School of Law and Human Rights Centre, Senior Lecturer).

ACCESS PROJECT HOMEPAGE HERE

The  Project Genesis and Background, the New Legal Norms on Human Rights Due Diligence; Volume Concept Note, follow below. 

Contents and Chapter Abstracts can be accessed here .

Monday, March 07, 2022

Recordings Now Available: ARP consultation exploring the links between human rights due diligence, accountability, and access to remedy.

 

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The Accountability and Remedy Project (ARP) has been ongoing for many years under the able stewardship of Jennifer Zerk. The Project managers recently held a multi-stakeholder consultation, well managed by some well known influencers and agenda drivers (and protectors) in this field. 

Jennifer Zerk

Recordings of all four sessions are now available in English on this event page
! You may also find links to individual sessions here:


The 
ARP consultation exploring the links between human rights due diligence, accountability, and access to remedy Consultation Concept Note and agenda which identifies those setting and guiding the project agenda follows.

 

Saturday, February 26, 2022

The Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights

 

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The invasion of the Ukraine by Russia presents more than a critical challenge for public law and the continued viability of the post 1945 state system; the invasion also presents substantial challenges for companies whose production chains  and other economic activities  occur in, through, or with either state or in the zones of conflict (broadly defined). Especially important in this context is the risk of complicity for many companies in violations not just of domestic law (sanctions regimes etc.) but also of core human rights responsibilities.    

These brief reflections consider very preliminarily, the responsibilities of business (whether undertaken by private or state entities) to respect human rights in the conduct of their economic activities under the framework of the UN Guiding Principles for Business and Human Rights (2011), and the OECD's Guidelines for Multinational Enterprises (Chp. IV--human rights).  More specifically, the focus is on the risk of complicity in the human rights violations of others (principally states but also other actors (insurgents, agents,  That, in turn, can be understood to involve three distinct areas of human rights risks: (1) conflict zone risks; (2) states that may be directly or indirectly involved in the commission of human rights wrongs or in support of states committing these wrongs; and (3) states, other organizations, and people who suffer human rights harms.  

The bottom line: it is likely that any enterprise that engages in economic activity in and through Russia (the invading state) as well as those states that have supported or are in any way supporting the Russian effort must both conduct quite rigorous human rights due diligence to determine whether at any point in their global production chains their activity contributes directly or indirectly to the Russian invasion efforts (complicity) and then to make a determination respecting how to prevent, mitigate, or remedy the human rights harms caused by  their complicity in facilitating Russian state (or private)  human rights harms. The forms of prevention, mitigation and remedial strategies may depend on the circumstances but may extend the entire length of global production chains and may in some cases require abandonment of an economic relationship and remediation of harm. In any case, depending on the circumstances , complicity that remains unresolved ought to open the enterprise and its officials to both civil and criminal liability. 

Companies that may have contributed to Russian or insurgent tech or to the development of materials used in the invasion--from chemical weapons, to trucks and tires, to the clothing used to uniform personal may all face complicity responsibilities. Tech companies that provide the phones,software and virtual spaces through which military aggression may be advanced and other crimes facilitated may also face substantial risk. This is especially the case where the victim of aggression has put the company on notice (see, Ukraine asks Apple to stop product sales and block App Store access in Russia; see also here, and here). Companies that provide or facilitate the trade in wheat from let's say Russia to the People's Republic of China and thereby provide Russia with the financial capability for ongoing adverse human rights violence may also face significant exposure for complicity. These are consequences that may produce not just business risk and the operation of so-called soft law frameworks, but may also produce legal risk throughout the company production chain.  NGOs,, states and other actors, as well as other representatives of peoples and governments adversely affected will likely begin quickly to interpose civil,criminal and soft law proceedings against companies on this basis.  The framework of the UNGPs may well provide the companies basis for such action. States must also carefully assess their compliance with the strict duty to defend human rights and their own exposure; complicity related claims may not only be limited to private economic actors but extend to others.  Bilateral investment and other treaty relationships may be the doorway through which these implications maybe undertaken.  

How does this work?

Complicity appears only once in the UNGPs, in the Commentary to UNGP ¶17 (Human Rights Due Diligence). 

Article 17 sets out the framework for human rights due diligence. That standard, in turn, is grounded on the core objectives of prevention, mitigation and remediation realized through a process of impacts assessment, action on findings, tracking responses, and communicating results.The scope of objectives and process is determined under a "cause or contribute" standard (¶17(a) tied to a causation standard ("directly linked to operations" standard).  It is understood that these are contextually based assessments that may change over time and that thus may require a dynamic approach.  

The Commentary to Principle 17 advances two principle points relating complicity to the core of human rights due diligence duties.  The first is that questions of complicity are approached under a "contributes to, or is seen as contributing to" standard. Thus actual realization of the fruits of complicity is not the triggering factor but perception itself is seen as contributing to adverse human rights impacts.  The second touches on the definition of complicity for purposes of the UNGP.  The Commentary adopts a very broad definition of complicity. That broad definition is divided into two parts. The first includes non-legal complicity. The definition of the non-legal standard of complicity is built on a "perception" standard" "business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party" (¶17 Commentary; emphasis added)). Legal complicity is based loosely on an "aiding and abetting" standard (" knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime" Ibid.). 

Nonetheless, complicity as a fundamental component of the corporate responsibility to respect human rights is also  connected to the principle of prevention-mitigation-remediation in UNGP ¶ 13 (What responsibility to respect human rights requires of business). 

Principle 13 elaborates the "cause or contributes" and the "directly linked" standards then embedded in Principle 17. Critical to the former standard is the understanding that causing or contributing  occurs through their own activities RATHER THAN BY such activity.  Critical for the elaboration of the later standard is that the direct link is to corporate operations, products and services but not to the human rights harm caused (" directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts " UNGP ¶ 13). The Commentary to Principle 13 clarifies these points.  First involvement in activities with adverse human rights impacts  is not limited to corporate activity but also  include those which occur "as a result of their business relationships with other parties" (UNGP ¶13 Commentary, with a cross reference to ¶19). "Activities" are broadly conceived to include actions and omissions. Business relationships (central to the directly linked standard) include " relationships with business partners, entities in its value chain, and any other non-State or State entity directly linked to its business operations, products or services "(Ibid.). 

It is important here to recall, as well, the debate about "spheres of influence" and complicity that were considered by the SRSG John Ruggie and treated in condensed form in  his 2008 Report, Clarifying the Concepts of “Sphere of influence” and “Complicity” (A/HRC/8/16). The Report considers in detail the then emerging legal standards in domestic and international law, as well as the broader standard emerging in the social sphere and in non-binding international standards.  Of particular interest may be the discussion around the complicity standards extracted from Principle 2 of the Global Compact, distinguishing between direct, beneficial, and silent complicity (Clarifying the Concepts , ¶58).  The SRSG's summing up in ¶70 of the Report: 

What constitutes complicity in both legal and non-legal terms is not uniform, nor is it static. Despite this messy reality, the evidence to date lends itself to several conclusions. First, knowingly providing a substantial contribution to human rights abuses could result in a company being held accountable in both legal and non-legal settings. Second, being seen to benefit from abuse may attract the attention of social actors even if it does not lead to legal liability. Third, and similarly, mere presence in contexts where abuses are taking place may attract attention from other social actors but is unlikely, by itself, to lead to legal liability. In short, both operating in contexts where abuses occur and the appearance of benefiting from such abuses should serve as red flags for companies to ensure that they exercise due diligence, adapted for the specific context of their operations.

To this point, then, one can understand the scope of the complicity standard as including activities that may arise directly from business relationships but that may manifest indirectly, and that includes conduct that may be perceived as aiding and abetting in the commission of acts with adverse human rights impacts.  That is, complicity includes effects that may be attributed to business relationships that may be perceived  that provides practical assistance or encouragement that has a substantial effect on the commission of a crime or otherwise a substantial human rights wrong. The consequences of this "jittery" nature of complicity, of course, will produce different consequences within domestic and international law systems, in markets, and through soft law systems, and the private law systems of global production.  At the same time it requires greater and more deeply embedded systems of diligence on the part of those great engines of global production whose access to great resources must be balanced against their responsibility to respect human rights. But the SRSG's fundamental point is consistent throughout: complicity ought to have its reckoning, and the complicit ought to own up to the breach of their responsibility to respect human rights.

Complicity is further contextualized in UNGP ¶ 19 (internalizing the prevention-mitigation principle in enterprise operations); and UNGP ¶ 22 (remediation); UNGP ¶ 23 (context);and UNCP ¶ 24 (prevent-mitigate-remedy and prioritization of addressing human rights impacts).

UNGP ¶ 19 adds substantial context to the cause or contribute standard in its elaboration of the prevention and mitigation objectives of human rights due diligence as the applied expression of the corporate responsibility to respect human rights.  

The key relevant provisions here relate to the "effective integration" principle (responsibility for addressing impact assigned to the appropriate level and function; ¶ 19 (a)) and the "appropriate action" principle (as a function of placement in the chain of causation  and extent of leverage in addressing impacts; ¶19(b)). Principle 19,then, addresses the question of what is to be done, after application of the Principle13stabadrdsto the operations of an enterprise through its implementation of Principle 17's human rights due diligence duty. 

Principle 19's Commentary adds context to the "what is to be done" analysis required under ¶19. Three are of significance in applying that calculus.  The first recognizes an "impossibility" standard": the responsibility of business respect for business recognized human rights to the extent possible  where full compliance is impossible, subject to a further duty to demonstrate efforts, and thus also to demonstrate the causes for impossibility ("Where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances, and to be able to demonstrate their efforts in this regard " UNGP ¶19 Commentary).  The second recognizes a "systemic compliance" standard grounded on assessment of legal liability under domestic and international law ("Business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of the provisions of the Rome Statute of the International Criminal Court" Ibid.). The third recognizes a "no exacerbation and consultation" standard (" draw on not only expertise and cross-functional consultation within the enterprise, but also to consult externally with credible, independent experts, including from Governments, civil society, national human rights institutions and relevant multi-stakeholder initiatives" Ibid.).  Together, these suggest the need to maximize compliance, demonstrate impediments to compliance, mindful of legal risk (requiring sensitivity to all domestic law  that may be applicable as well as international criminal law) balanced against a duty to avoid exacerbation of adverse human rights impacts supported by transparent consultation with key external actors. . These standard are fully applicable to the context of complicity related adverse impacts but made more complex because of the additional step of connecting the actions of others (especially states) to the economic contribution that may have indirectly but significantly facilitated a state's breach of its own duty to protect human rights. ,

UNGP ¶ 22 then speaks to remediation (and the elaboration of the "cause or contributed " and "directly linked" standards) as an addition to the applicable standards for prevention and standards under Principle 19).  

The "cause or contribute" standard applies irrespective of the foreseeability of the adverse impact.  While Principle 19 speaks to ex ante planning, Principle 22 focuses on responsibility after the harm has occurred or while it is occurring. The key insight for complicity is set out in the Commentary and relates to a common element of complicity--the situation where the enterprise causes or contributes  by its business relationships and actions but does not control the consequences or impact itself. "Where adverse impacts have occurred that the business enterprise has not caused or contributed to, but which are directly linked to its operations, products or services by a business relationship, the responsibility to respect human rights does not require that the enterprise itself provide for remediation, though it may take a role in doing so." (UNGP¶22 Commentary).

UNGP ¶¶ 23 and 24 then adds  the practical considerations of the application of the standards and expectations built into the human rights due diligence systems.  These are particularly relevant in the context of complicity where the human rights harms are caused or directed by or for a state actor by the state, other states, or other actors who serve as state. 

UNGP 23 provides the "balancing" standard for complying with an entity's responsibility to respect human rights. It must first seek to comply with both domestic law and international standard where ever they operate. In cases of conflict between the two they must  seek ways to honor the principles but comply with domestic law.  Where that honoring impulse becomes impossible or is compromised then it must assess the risk of causing or contributing to adverse human rights impacts  as a legal compliance issue.  The Commentary refines this balancing standard and its consequences especially for the residual remedial obligation that is never waived but may be postponed for a reckoning at an appropriate time and before an appropriate tribunal. With respect to compliance the Commentary makes clear that this is subject to the same standard as under Principle 19's impossibility standard. Legal compliance standards point to the possibility of civil actions anywhere throughout a production chain by those impacted by the complicity related harms or by states or the ICC. Lastly Principle 19's "no exacerbation" standard is also applied here. 

UNGP 24 then suggests the way that assessment of response must be ordered, and sets forth the "no waivability" standard for remedial obligations irrespective of the application of any "impossibility" standard.  In other words, though compliance may be impossible, and an assessment reasonably made that continued engagement in actions of complicity may be warranted by the application of the "no exacerbation" principle, any harm caused thereby will still be subject to the unwaivable responsibility to remediate--if not now then later.This principle is bound up in the requirement  of seeking to prevent and mitigate the most severe harm first (an "irremediability first" standard). The Commentary provides " if prioritization is necessary business enterprises should begin with those human rights impacts that would be most severe, recognizing that a delayed response may affect remediability." (¶ 24 Commentary).

The application of these principles and their process and liability structures are further refined in the context of conflict zones (Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises; Business, human rights and conflict-affected regions:
towards heightened action
¶ 11 (2020); Corporate Social Responsibility in Weak Governance Zones (risk and complicity)). Application will depend on context.  Andhere the processes and principles of the UNGP will apply differently in (1) conflict zone risks; (2) states that may be directly or indirectly involved in the commission of human rights wrongs or in support of states committing these wrongs; and (3) states, other organizations, and people who suffer human rights harms.  Lastly, The OECD Guidelines for Multinational Enterprises then add two things.  First they effectively incorporate the UNGPs in Chapter IV of the Guidelines.  And then by this incorporation open the availability of engagement through the National Contact Point Specific Instance process.

It is already clear that many enterprises across the world, but certainly those  whose home states are OECD members ought to be assessing their complicity risks at this moment. Whatever the realities of economic activities before 22 February 2022 (or earlier depending on when the start of Russian aggression may be calculated), after that date business activity in many sectors now have a significant task to apply the principles and balancing responsibilities of the UNGP, and as well to begin to set aside resources to meet their remedial obligation to Ukraine and the Ukrainian people applied strictly through  the law and the norms of the UNGP. More importantly, states that impede the processes for the effort to indicate rights, including by reducing access to and the effectiveness of the National Contact Point processes of the OECD Guidelines for Multinational Enterprises may themselves be understood to be complicit and in any case they may open themselves to consideration of their own failure to meet their duty to protect human rights.    

The Text of the relevant provisions follow: