Doing Business Right Blog

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

World Bank Group – The Changing Nature of Work
International Labour Organization – International Labour Office expresses concern about World Bank report on future of work
OECD – OECD Working Party on Responsible Business Conduct Elects New Chair
UN Office of the High Commissioner for Human Rights – Business dragging its feet on human rights and investors are watching, say UN experts

National governments publications and statements

U.S. Mission Geneva – The United States’ Opposition to the Business and Human Rights Treaty Process

NGO and Law Firm publications and statements

EU civil society organisations call on the EU to contribute substantively to the negotiations on the Zero Draft Treaty on Business and Human Rights
European Coalition for Corporate Justice – Civil society proposal for the Conclusions and Recommendations of the Report of the 4th session of the OEIGWG
Friends of the Earth – The EU and the Corporate Impunity Nexus: Building the UN Binding Treaty on Transnational Corporations and Human Rights
International Corporation Accountability Roundtable and CORE Coalition, Who made our uniforms? U.K. Public Sector Apparel Procurement: Ensuring Transparency and Respect for Human Rights
International Federation for Human Rights and the Colectivo sobre Financiamiento e Inversiones Chinas, Derechos Humanos y Ambiente, Universal Periodic Review, Third Cycle of the Civil Society’s Evaluation of the Extraterritorial Obligations of the People’s Republic of China: Case Studies from Argentina, Bolivia, Brazil, Ecuador and Peru
International Organisation of Employers – Business response to the Zero Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises ("Zero Draft Treaty") and the Draft Optional Protocol to the Legally Binding Instrument ("Draft Optional Protocol") Annex
Shift, Human Rights Reporting in France: A Baseline for Assessing the Impact of the Duty of Vigilance Law
Bank Track – ANZ bank issued rare rebuke by Australian oversight body
Clean Clothes Campaign – As UNIQLO pops the campaign in Europe, deprived garment workers knock its door in Japan

In Court

France 24, Panama court ruling puts Canada mining project in doubt
Justice Info – Sweden oks trial of Lundin Oil execs for Sudan War Crimes
The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (Civil law division)
The Democracy Center, Supreme Court Accepts Appeal of Peruvian Human Rights Defender and Overturns Sentence

In the News

An Open Letter to States Concerning an International Legally Binding Instrument on Business and Human Rights

Speeches, Videos and Interviews

NYU Stern Center for Business and Human Rights – A Tipping Point in Human Progress: In Conversation with Dr. Rajiv J. Shah and Professor Michael Posner

Academic Materials

Ana Cláudia Ruy Cardia, Reparation of victims in light of a treaty on business and human rights, Brazilian Journal of International Law
Catherine Higham, Reimagining responsibility: how human rights due diligence practices could inform judicial responses to climate accountability litigation (a thesis submitted to the University of British Colombia)
Daniel Fernando Uribe Terán, Keeping the head up: Lessons learned from the international debate on business and human rights, International Journal on Human Rights and Business
Humberto Cantú Rivera, Some remarks on the third sessions of the Business and Human Rights Treaty Process and the ‘Zero Draft’, Brazilian Journal of International Law
Juan Gabriel Auz Vaca, The environmental law dimensions of an international binding treaty on business and human rights, Brazilian Journal of International Law
Justin Jos, Access to remedies and the emerging ethical dilemmas: changing contours within the business-human rights debate, Brazilian Journal of International Law
Justine Nolan – Hardening soft law: are the emerging corporate social disclosure laws capable of generating substantive compliance with human rights?, Brazilian Journal of International Law
Mariana Aparecida Vilmondes Türke, Business and human rights in Brazil: exploring human rights due diligence and operational-level grievance mechanisms in the case of Kinross Paracatu gold mine, Brazilian Journal of International Law
Mihaela Maria Barnes, The United Nations Guiding Principles on Business and Human Rights, the State duty to protect Human Rights and the State-business nexus, Brazilian Journal of International Law

Blogs

Asser Institute Doing Business Right Blog

Alexandru Tofan – The Lafarge Affair: A First Step Towards Corporate Criminal Liability for Complicity in Crimes against Humanity
Shamistha Selvaratnam – The Proposed Binding Business and Human Rights Treaty: Summary of the Fourth Session of the Working Group

Others

Ana María Suarez Franco and Daniel Fyfe – Why the Treaty Draft is a Serious Basis for Negotiations
Antoine Duval – It's time for the EU to stand up to transnational corporations
Carlos Lopez – Human rights defenders and corporate accountability– Is there a place for them in a treaty on business & human rights?
Denise Auclair – What can the zero draft Treaty text offer to people negatively affected by business operations?
Larry Catá Backer – Thoughts on John Ruggie, ‘Guiding Principles’ for the Business & Human Rights Treaty Negotiations: An Open Letter to the Intergovernmental Working Group"
Maddalena Neglia – The publication of the "Zero Draft" documents is positive news, but it calls for much further discussion
Nadia Bernaz – A Commentary of the Draft Optional Protocol to the Business and Human Rights Treaty
Raphaela Lopes and Arnold Kwesiga – What the Zero Draft and Protocol Lack: Meaningful Access to Justice – a Global South Perspective
Shane Darcy – Why Ireland isn’t supporting the business and human rights treaty process
Shawan Jabarin & Maha Abdallah – The “Zero Draft” Treaty: Is it Sufficient to Address Corporate Abuses in Conflict-Affected Areas?

Call for Papers and Abstracts

Call for papers for the European Institute for Advanced Studies in Management’s 5th Workshop of Business Ethics (due 1 December 2018)

Upcoming Events

13 November 2018 – 2018 Australian Dialogue on Business and Human Rights, Global Compact Network of Australia – Sydney
26-28 November 2018 – Business respect for human rights – building on what works, UN Forum on Business and Human Rights – Geneva
28 January – 1 February 2019 – Doing Business Right Winter Academy - The UN Guiding Principles on Business and Human Rights: From theory to practice – Asser Institute, The Hague

Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.

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. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

Landmark corporate bribery trial against Shell, Eni, CEOs and executives

On 20 December 2017, a judge in Milan, Mrs Justice Barbara, ordered the biggest corporate bribery trial in history as the British-Dutch multinational oil and gas company Shell and the Italian oil giant Eni are charged with aggravated international corruption. Also facing trial are Eni’s current CEO Claudio Descalzi, former CEO Paolo Scaroni and Chief Development Operations and Technology Officer Roberto Casula, alongside four former Shell staff, including Malcolm Brinded CBE, and two former MI6 agents employed by Shell. A report by Global Witness and Finance Uncovered in April 2017 highlighted the allegations relating to Eni and Shell’s acquisition of a deepwater oil-prospecting license for one of Africa’s most valuable oil blocks, known as OPL 245, in the Gulf of Guinea in 2011. Prosecutors allege that the two companies’ payment of almost $1.1 billion into a Nigerian government escrow account was later distributed as payoffs. No company as large as Shell or such senior oil company executives have previously stood trial for bribery offences. The trial is set to begin on 5 March 2018, whilst Eni and Shell also face criminal charges in Nigeria over the same deal.

Asociación Profesional Elite Taxi v Uber Systems Spain SL: Uber is a regulatable transport service

On 20 December 2017, the Court of Justice of the European Union handed down its judgment in Case C-434/15 Asociación Profesional Elite Taxi v Uber Systems Spain SL. Uber is an electronic platform providing a paid service, connecting individual passengers with non-professional drivers who use their own cars, through a smartphone application. In 2014, a professional taxi drivers’ association in Barcelona brought an action before the Juzgado de lo Mercantil No 3 de Barcelona seeking a declaration that the activities of Uber Systems Spain amount to misleading practices and acts of unfair competition. The Spanish court wanted to ascertain whether the services provided by Uber are transport services, information society services or a combination, as the requirement for prior administrative authorisation depended on the classification adopted. The Court of Justice held that Uber’s intermediation service must be regarded as forming an integral part of an overall service whose main component is a transport service and, accordingly, should be classified as ‘a service in the field of transport’ within the meaning of European Union law. Therefore, it is for Member States to regulate the conditions under which such services are provided, in conformity with the general rules of the Treaty on the Functioning of the European Union.

Government Consultations, Reports and Guidance

Parliament of the Commonwealth of Australia, Joint Standing Committee on Foreign Affairs, Defence and Trade - Hidden in Plain Sight: An inquiry into establishing a Modern Slavery Act in Australia
United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises - Letter to the Government of Australia

NGO and Law Firm Reports, Papers and Investigations