Editor's note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. Alongside her studies, she is working as student research assistant at the Institute for International and Foreign Private Law in Cologne. Since September 2020, she joined the Asser Institute as a research intern for the Doing Business Right project

On 25 September 2020, the final hearings in the Kiobel case took place before the Dutch District Court in The Hague. This case dates back to 25 years ago; and the claimants embarked on a judicial journey that led them from the US to the Netherlands. On 16 October 2020, the TMC Asser Institute hosted an online roundtable discussion to present and discuss the arguments raised before the Dutch court. The three panelists, Tara Van Ho from Essex University, Tom de Boer from Prakken d’Oliveira, and Lucas Roorda from Utrecht University each provided their stance on the case and analyzed the past, the present and the main issues of the proceedings.

Depending on the outcome of the case, Kiobel could pave the way for further business human rights litigation in Europe. It raises questions ranging from jurisdiction, applicable law, parent company liability and fee arrangements to state sovereignty and the responsibility of former colonial states vis à vis countries that emerged from colonial rule. Below you will find the highlights of our discussion, you can also watch the full video on the Asser Institute’s YouTube channel.More...

On Friday, 16 October, from 16.00-17.00, we will organise an online discussion about the Kiobel v. Shell case, currently before Dutch courts in the Hague. The discussion will retrace the trajectory followed by the case in reaching The Hague, explain the arguments raised by both parties in the proceedings, and assess the potential relevance of the future ruling for the wider debate on corporate accountability/liability for human rights violations. 

Background

In 1995, nine local activists from the Ogoniland region of Nigeria (the Ogoni nine) were executed by the Nigerian authorities, then under the military dictatorship of General Sani Abacha. They were protesting against the widespread pollution stemming from the exploitation of local oil resources by a Nigerian subsidiary of Royal Dutch Shell when they were arrested and found guilty of murder in a sham trial. Their deaths led first to a series of complaints against Royal Dutch Shell in the United States on the basis of the alien tort statute (ATS). One of them, lodged by Esther Kiobel, the wife of one of those killed (Dr Barinem Kiobel), reached the US Supreme Court. Famously, the Court decided to curtail the application of the ATS in situations that do not sufficiently 'touch and concern' the territory of the United States.

This ruling put an end to Esther Kiobel's US lawsuit, but it did not stop her, together with three other widows (Victoria Bera, Blessing Eawo and Charity Levula), from seeking to hold the multinational company accountable for its alleged involvement in the deaths of their husbands. Instead, in 2017, they decided to continue their quest for justice on Royal Dutch Shell’s home turf, before Dutch courts in The Hague. 25 years after the death of the Ogoni nine, the court in The Hague just finished hearing the pleas of the parties and will render its much-awaited decision in the coming months.

Confirmed speakers

Introduction

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

The Headlines

Shell-Eni Bribery Case: On 5 March, the corporate bribery trial against oil companies Shell and Eni was postponed to 14 May by a court in Milan, Italy.  The charges against the companies are bribery and corruption in the 2011 purchase of a Nigerian offshore oilfield, one of the most valuable oilfields in Africa. Although both firms denied the charges, the corruption watchdog Global Witness claimed that hundreds of millions of dollars had been paid to Nigeria’s former president and his former oil minister as pocket bribes. Global Witness calls the case one of the biggest corruption scandals in the history of the oil sector. The trial in the Milan court is expected to last 12-18 months.

Jesner v. Arab Bank: On 24 April, in a 5-4 vote, the US Supreme Court ruled in the Jesner v. Arab Bank case that foreign corporations cannot be brought before US courts under the Alien Tort Statute (ATS). Between 2004 and 2010, thousands of foreign nationals sued Arab Bank under the ATS, claiming that the Bank’s officials allowed money transfers through the New York branch of the Bank to Hamas who committed violent acts in Israel and Occupied Palestinian Territories. The Supreme Court held that foreign corporations cannot be sued under the ATS. Furthermore, the Court claimed that international law today does not recognize “a specific, universal, and obligatory norm of corporate [tort] liability”, which is a prerequisite to bringing a lawsuit under the ATS. In the Court’s lead opinion, Justice Kennedy stated that "Courts are not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one.” In her dissenting opinion joined by three other justices, Justice Sotomayor claimed that the decision "absolves corporations from responsibility under the ATS for conscience-shocking behavior."

Fifth Anniversary of Rana Plaza: April 24th also marked the fifth anniversary of the deadly collapse of Rana Plaza in Dhaka, Bangladesh. Rana Plaza was a five-story commercial building which housed several garment factories employing around 5000 people. The global outcry after the disaster which claimed at least 1134 lives led to numerous initiatives to change business-as-usual in the garment and textile supply chains in Bangladesh and beyond. Despite these initiatives which employed various approaches to the issue of worker safety in the supply chains, it is widely acknowledged that there is still a long way to go to create a safe working environment for workers in the garment and textile supply chains. On 12 April, the Asser Institute hosted a one-day conference on Rana Plaza to take stock of the regulatory and policy initiatives aimed at improving workers’ safety in the garment supply chain (You will find our background paper here).

 Okpabi v. Royal Dutch Shell - Episode. 3? On 27 April, more than 40 UK and international human rights, development and environment NGOs, later supported by academics from different states, urged the UK Supreme Court to allow two Nigerian fishing communities to appeal against the Okpabi v Royal Dutch Shell ruling of the Court of Appeal in February which denied responsibility for UK-based Royal Dutch Shell for the pipeline spills, dating back as far as 1989, which affected approximately 40000 Nigerian farmers and fishermen. The NGOs claimed that the Court of Appeal’s decision erred in many ways as it seriously restricts parent company liability and limits the options available to victims of corporate human rights violations seeking remedy in the UK.More...

The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations’. The Jesner decision, released earlier that day by the U.S. Supreme Court, triggered a tremor of indignation in the human rights movement given the immunity it conferred to foreign corporations violating human rights against suits under the Alien Tort Statute, and led to a flood of legal and academic commentaries online. This panel discussion, organised with the support of the Netherlands Network of Human Rights Research, will address various aspects of the judgment. Its aim is to better understand the road travelled by American courts leading up to the decision with regard to the application of the Alien Tort Statute to corporations, to compare the decision with the position taken in other jurisdictions, and to discuss the ruling's potential broader impact on the direction taken by the business and human rights movement.

Where: T.M.C. Asser Instituut in The Hague

When: Thursday 24 May at 2:30 pm

Speakers:

• Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective

• Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations

• Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner

• Antoine Duval (Asser Institute) - Moderator

Register here!

Editor's note: Enrico Partiti is Assistant Professor of Transnational Regulation and Governance at Tilburg University and Associate Fellow at the Asser Institute. His expertise centres on European and international economic law, sustainability and supply chain regulation. In particular, he studies how private standard-setters and corporations regulate globally sustainability and human rights 

Upcoming Event: Fighting global deforestation through due diligence: towards an EU regulation on forest and ecosystem risk commodities? - 4 November 2020 - 16:00 (CET) - Register Here!

The recent vote in the Environment, Public Health and Food Safety (ENVI) Committee of the European Parliament on binding legislation to stop EU-driven global deforestation is a watershed moment in the global fight against deforestation, ecosystem conversion and associated human rights violations. The ENVI Committee report, that will soon be voted by the plenary, requests the Commission (as provided in Art. 225 TFEU) to table a legislative proposal for a measure disciplining the placing on the EU market of products associated to forest and ecosystem conversion and degradation, as well as violations of indigenous communities’ human rights. The Parliament’s initiative takes place in a policy context increasingly concerned with deforestation, in the framework of a Commission Communication on stepping up EU action to protect and restore the world’s forests which left a door open for legislative intervention. 

The proposed measure would aim to severe the economic link between demand of agricultural commodities, especially by large consumers markets, and negative environmental impacts - including on climate change. Beef, soy and palm oil alone are responsible for 80% of tropical deforestation, and consequent CO2 emissions. In 2014, EU demand was responsible for 41% of global imports of beef, 25% of palm oil and 15% of soy, as well as large shares of other commodities at high risk for forests and ecosystems such as such as maize (30%), cocoa (80%), coffee (60%), and rubber (25%). Protecting just forests is not sufficient, as it risks to displace conversion to other non-forests ecosystems such as the Brazilian cerrado. In light of their negative impact on both forests and other natural ecosystems, such commodities have been labeled as forest and ecosystem risks commodities (FERCs). More...

Between 2010 and 2015, 7.6 million hectares of forests were lost every year. Deforestation not only causes immense biodiversity loss, but it also has extremely negative repercussions on climate change. Hence, deforestation is one of the world’s most pressing global challenges. 

This online event will discuss the EU Parliament’s new initiative to tackle deforestation. It will examine the initiative’s substance, possible implications for fighting deforestation across the globe, and possible means for enforcement and their challenges, as well as its impact on EU obligations under international (trade) law.

Background

Research has shown that agricultural production is a major driver of deforestation. The majority of global tree cover loss between 2000 and 2015 was caused by agricultural production, and another quarter was due to forestry activities. Furthermore, a large proportion of forest clearance occurs in breach of local legal and administrative requirements. However, only half of the total tropical deforestation between 2000 and 2012 was caused by illegal conversion. Weak enforcement of forest laws in certain countries further compounds the problem of relying on legality as a meaningful threshold to stop conversion for agricultural purposes, especially where political leaders wilfully reduce law enforcement and conservation efforts to favour agribusiness. 

To tackle these closely intertwined concerns, the EU is in the process of enhancing its policies on global deforestation linked to EU imports. In addition to the existent Timber Regulation, assessing the legality of timber origin, and the Renewable Energy Directive, establishing sustainability requirements for biofuel crops, the EU is considering several regulatory and non-regulatory interventions. Among the most profound measures, the EU Parliament is about to approve a ground-breaking Resolution that will require the Commission to propose an EU Regulation ensuring that only agricultural commodities and derived products that are not linked to deforestation, ecosystem conversion and associated human rights violations are marketed in the EU. Building on the Timber Regulation and human rights due diligence responsibilities as prescribed in the United Nation Guiding Principles on Business and Human Rights, the proposal would require economic operators to implement the obligation via non-financial due diligence ensuring that products do not originate from converted forests and ecosystems, regardless of the legality of land-use conversion.

Speakers

• Delara Burkhardt, European Parliament’s Rapporteur for a Motion for an EU Parliament Resolution with recommendations to the Commission on an EU legal framework to halt and reverse EU-driven global deforestation (her draft report is available here).

• Andrea Carta, Senior legal strategist at Greenpeace, EU Unit

• Enrico Partiti, Assistant professor in transnational regulation and governance, Tilburg University

• Meriam Wortel, Netherlands Food and Consumer Product Safety Authority

The discussion will be moderated by Antoine Duval, Senior researcher at the Asser Institute and coordinator of the ‘Doing business right’ project. 

Click here to register for this online discussion.

Editor’s note: Wybe Th. Douma is senior researcher in EU law and international trade law at the Asser Institute

Although the placing of illegally harvested timber on the EU internal market is prohibited already for over four years, the first court cases are appearing only now. Judges in Sweden and The Netherlands have recently held that the due diligence requirements of the EU Timber Regulation (EUTR) had not been met by two importing companies. The companies should have ensured that the timber from Myanmar and Cameroon was logged in compliance with the local legislation, should have provided extensive evidence of this, especially where the countries in question are prone to corruption and governance challenges, and should have adopted risk mitigation measures. Moreover, another Dutch court recently ordered the Dutch competent authorities to explain why they did not enforce the EUTR in cases where due diligence requirements concerning timber imported from Brazil were not met. In other EU member states, similar court decisions were adopted.[1]

The court decisions show that the EUTR system, aimed at ‘doing business right’ in the timber trade sector, is starting to take effect in practice. Could the ‘unilateral’ EUTR system form an example for other regimes that try to ensure that trade by the EU with the rest of the world contributes to sustainable development and the protection of human rights? And what role does the bilateral Voluntary Partnership Agreement (VPA) on Forest Law Enforcement, Governance and Trade (FLEGT) between the EU and Indonesia play in this respect? More...