Doing Business Right – Monthly Report – July & August 2019 - By Maisie Biggs

Editor's note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague. She has previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

 

Introduction

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

 

The Headlines

Revised Draft of Treaty on Human Rights and TNCs has been published

The Revised Draft has been released here by the Permanent Mission of Ecuador. The Draft comes ahead of the intergovernmental negotiations to be held at the 5th session of Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (OEIGWG). For further comment and context, see Larry Catá Backer's blog, the BHRRC's debate the treaty section on the revised draft, as well as the BHRJ Blog's series on the revised draft.

Business Roundtable redefined the group’s Purpose of a Corporation 

A prominent group of business leaders has redefined its purpose of a corporation to include stakeholder interests. In a statement signed by 181 CEO members of the Business Roundtable, an American group of business leaders, the statement of “the purpose of a corporation” has been altered from the long-standing commitment to shareholder primacy, to a broader ‘Commitment to All Stakeholders’. The change was announced in an advertisement in the Wall Street Journal and signed by 181 members, including the business leaders of Amazon, American Airlines, Bank of America, Coca-Cola, Marriott, Lockheed Martin, Morgan Stanley, UPS, and Walmart.

Chairman of Business Roundtable and CEO of JPMorgan Chase, Jamie Dimon, explained in the release: “The American dream is alive, but fraying. Major employers are investing in their workers and communities because they know it is the only way to be successful over the long term. These modernized principles reflect the business community’s unwavering commitment to continue to push for an economy that serves all Americans.”

This reconceptualisation of the purpose of corporations has been met with cautious enthusiasm; however, the statement has no bearing on the legal obligations of the signatories, and whether this materially alters business conduct by the signatories’ companies is yet to be seen.

The ‘Business Roundtable Statement on the Purpose of a Corporation’ can be found here.

UK Supreme Court to hear Okpabi case against Shell

The Supreme Court has granted permission for Nigerian communities to appeal their case concerning environmental degradation against Royal Dutch Shell. Previously the Court of Appeals rejected jurisdiction for the claimants, however the Court’s reasoning was fundamentally undermined by the subsequent Supreme Court judgement in Vedanta. See our previous post here concerning how these cases are related, and how Vedanta has paved the way for jurisdiction to be found in the Okpabi case. See the statement by Leigh Day, working with the appellants, here.

In another case concerning the liability of a UK parent company for harms perpetrated abroad by a subsidiary that hinged on jurisdiction, the Supreme Court refused permission in AAA v Unilever PLC for Unilever subsidiary employees to appeal. Leigh Day have announced they will now move to file cases with the UN Working Group and the OECD.

Samsung France indicted for deceptive commercial practices for not abiding by CSR statements

NGOs Sherpa and ActionAid France have successfully obtained an indictment against Samsung France for deceptive commercial practices. Preliminary charges were lodged in April by a Paris investigating magistrate in the first French case in which ethical commitments have been recognised as likely to constitute commercial practice.

The organisations argue that public ethical commitments by Samsung to workers' rights were misleading, citing alleged labour abuses and child labour in factories in China, South Korea and Vietnam. The case represents a novel approach to litigating extraterritorial business human rights abuses; even in the aforementioned Vedanta case in the UK, there was a similar (brief) suggestion that CSR-style public commitments could be actionable.

Guatemalan shooting victims announce settlement with Pan American Silver in Canada

It has been announced that landmark 2017 Canadian case Garcia v. Tahoe Resources has been resolved between the parties. The case concerned remedy for 2013 shooting of protesters by Tahoe Resources mine security on April 27, 2013 outside Tahoe’s Escobal Mine in south-east Guatemala. The resolution included a public apology from Pan American Silver, who acquired Tahoe Resources earlier this year, while other terms of the settlement remain confidential. Settlements were reached with three of the claimants earlier, but the remaining four only settled on 30 July when PAS issued a public apology and acknowledgement of the violation of their human rights by Tahoe.

In 2017, the BC Court of Appeal confirmed jurisdiction over the case in Canada, finding that the “highly politicized environment” surrounding the mine meant that there was a “real risk” that the plaintiffs would not obtain justice in Guatemala, permitting the claimants to use the Canadian forum. The head of security for the mine is also facing criminal proceedings in Guatemala.

Remedy being reached has led to celebration from commentators, however no further legal precedent has been set than that from the 2017 appeal, so it might have limited value for future claimants. It has been surmised that settlement was reached because of the overwhelming evidence in the case: video footage from security cameras showed protestors being shot in the back as they fled the mine site.

See also: The GuardianBrazilian mining company to pay out £86m for disaster that killed almost 300 people and San Francisco ChronicleSuit alleging US chocolate makers collaborated in slave labor proceeds for US developments.

 

UN and International Organisations Publications and Statements

NGOs, NHRIs, CSOs and Human Rights Organisations Publications and Statements 

Government Press Releases and Publications

In Court

In the News

Academic Materials

Blogs           

Call for Papers, Submissions and Abstracts

Upcoming Events

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Doing Business Right Blog | Doing Business Right – Monthly Report – October 2018 - By Shamistha Selvaratnam

Doing Business Right – Monthly Report – October 2018 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and an intern with the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice. 

Introduction

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

The Headlines 

Fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights

From 15 to 19 October 2018, the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights took place in Geneva. A first reading of the zero draft of the proposed binding business and human rights treaty was conducted and those in attendance at the session exchanged views, suggestions, improvements and areas of concern regarding each article of the treaty. The draft Optional Protocol was also presented during the session. Key themes that arose during the session included the importance of the treaty aligning with the UN Guiding Principles on Business and Human Rights (UNGPs), the indirect imposition of human rights obligations on businesses, the scope of businesses covered by the treaty and legal liability. For a summary of the views exchanged by those in attendance at the session with respect to the treaty, please refer to our recent blog post.

States and other stakeholders have been invited to submit their comments and proposals on the treaty by the end of February 2019 and the Chair-Rapporteur will prepare a revised draft of the treaty in the meantime, the text of which will be presented in June 2019. The revised draft will be negotiated during the fifth session of the working group which is set to take place in October 2019.

UN issues guidance on human rights due diligence

The UN working group on the issue of human rights and transnational corporations and other business enterprises recently released guidance on: (a) key features of human rights due diligence; (b) current gaps and challenges; (c) emerging good practices; and (d) how key stakeholders can contribute to the scaling-up of effective human rights due diligence. The UN General Assembly resolution notes that due diligence is ‘fundamental as a way of informing what any business enterprise should do to meet its responsibility to respect human rights.’ It states that human rights due diligence should be undertaken to prevent adverse human rights impacts, be commensurate with the severity and likelihood of such adverse impacts, and be ongoing.

The working group has made a number of recommendations to states, business enterprises and entities in the investment community in order to improve business human rights due diligence practices. For example, the working group recommends that business enterprises that have not yet implemented human rights due diligence approaches ‘just get started’. For those businesses that have already adopted human rights due diligence policies and processes that are aligned with the UNGPs, the working group recommends that they ‘continue on the journey’ and ‘seek to continuously enhance approaches’ For States, the working group recommends that they use legislation to ‘create incentives to exercise due diligence’, including through the imposition of mandatory requirements. 

International organisations publications and statements

National governments publications and statements

NGO and Law Firm publications and statements

In Court

In the News

Speeches, Videos and Interviews

Academic Materials

Blogs           

Asser Institute Doing Business Right Blog

Others

Call for Papers and Abstracts

Upcoming Events

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Doing Business Right Blog | Business and Human Rights Internship - Asser Institute - Deadline for Application 10 August

Business and Human Rights Internship - Asser Institute - Deadline for Application 10 August

We are looking for a new business and human rights intern starting early September 2018 for a period of at least three months, preferably full-time. The Internship will be based at the Asser Institute in The Hague.


Main tasks:

  • Contribute and develop research outputs within the Asser research project ‘Doing Business Right’, especially for the blog;
  • Assistance in day-to-day maintenance of social media accounts linked to the ‘Doing Business Right’ project;
  • Assistance in organizing upcoming events (workshops, lectures);
  • Assist in legal research and analysis in the frame of academic publications.

Interested candidates should have:

  • Demonstrated interest in legal issues lying at the intersection of transnational business, human rights, private international law, and global value chains regulation. An interest in transnational law and private regulations are an advantage;
  • Solid academic and non-academic writing skills, research and analytical skills;
  • A master degree in EU law, private or public international law or international relations;
  • Excellent command of written and spoken English, preferably at a native speaker level;
  • Experience with managing websites and social media communication is of an advantage.

What we offer:

  • A stipend, based on the level of education completed;
  • Exposure to the academic activities of the research strand ‘Advancing public interests in international and European law’, and the T.M.C Asser Instituut, a leading research centre in International and European law;
  • An inspiring, dynamic and multicultural working environment.


Interested candidates should apply by email, sending a motivation letter and CV in English, a sample of academic writing (master’s thesis or paper from a course relevant to the topics of the research project ‘Doing Business Right’) to both A.Duval@asser.nl and E.Partiti@asser.nl.


Deadline for application is 10 August 2018, 12.00 PM CET.


Please note: We cannot offer assistance in obtaining residence and work permits for the duration of the internship.

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