Doing Business Right – Monthly Report – April 2019 - By Shamistha Selvaratnan

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. 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

UK Supreme Court hands down judgment denying appeal by Vedanta

Following a significant UK Supreme Court jurisdiction case this month, for the first time a UK company will face trial in their home jurisdiction for environmental and human rights impacts associated with its foreign subsidiary. In Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20, the Supreme Court denied an appeal by Vedanta Resources and its Zambian subsidiary KCM, and allowed the claim to proceed to merits in England. The Court made it clear the real risk that the claimants would not obtain access to substantial justice in Zambia was the deciding factor in the case.

The big news is the Court’s prioritisation of access to justice as a jurisdictional hook for claims in England, however the finding of a “real triable issue” between a foreign claimant and UK parent company is also of great significance. The Court lowered the (previously insurmountable) bar for evidence the claimants have to provide at the pre-trial stage, allowing victims of corporate abuses to rely more heavily on the potential future disclosure of internal defendant documents. The Court called for a more liberal, less formalistic approach to determining whether a parent company potentially exercised control, saying that the existing legal criteria ought not to be a ‘straitjacket’ on the courts.

To the relief of those following previous cases like Okpabi, Lord Briggs confirmed that the size of a company’s operations does not dilute a duty of care – under the previous state of the law, the liability of a company decreased as its power and size increased. Additionally, company group-wide Corporate Social Responsibility policies and guidelines can now potentially be a basis to argue a case of parent company control. Companies making public statements that they protect the environment and human rights in their operations may now be held to these press-friendly representations. Read our full analysis of the case here.

 

UN and International Organisations Publications and Statements

NGOs, CSOs and Human Rights Organisations Publications and Statements 

Government Press Releases and Publications

In Court

In the News

Academic Materials

Blogs           

Asser Institute Doing Business Right Blog

Others

Call for Papers, Submissions and Abstracts

Upcoming Events

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Doing Business Right Blog | Doing Business Right – Monthly Report – March 2019 - By Shamistha Selvaratnam

Doing Business Right – Monthly Report – March 2019 - 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 a contributor to 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

US Supreme Court decision: World Bank can be sued for projects that impact on local communities

In late February, the US Supreme Court handed down its judgment in Jam et al. v. International Finance Corporation, ruling that the World Bank does not enjoy absolute immunity from being sued in the United States, including in relation to its commercial activities. In this case, members of a minority fishing community in India sued the International Finance Corporate (IFC) (an arm of the World Bank) in order to hold it accountable for various harms caused by the Tata Mundra power plan, an IFC-financed project. The federal district court found that the IFC enjoys ‘virtually absolute’ immunity from suits. The US Court of Appeals upheld this decision. However, the US Supreme Court overturned this decision finding that international organisations can now be sued in the United States. Read the judgment here. The Asser Institute will be holding an event on 24 April 2019 which will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of international organisations, and international financial institutions in particular. Register for the event here.


Australian Government releases draft guidance in relation to modern slavery

The Australian Government has published its draft guidance for reporting entities under the Modern Slavery Act 2018 (Cth), which was passed by Parliament in December 2018. The draft sets out what entities need to do to comply with the reporting requirement under the Act. Usefully, the draft informs entities on how to determine whether it is a reporting entity and how to prepare a modern slavery statement. It offers suggestions on how to meet the seven reporting criteria, including how to scope out an entity’s modern slavery risks and possible actions that can be taken to assess and address risks identified. Read the draft here.


NGO, Human Rights Organisations and Law Firm publications and statements


Government press releases and publications


Company 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 – December 2017 - By Catherine Dunmore

Doing Business Right – Monthly Report – December 2017 - By Catherine Dunmore

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

NGO and Law Firm Reports, Papers and Investigations

In court

In the news

Finance

Labour

Mining and Minerals

Swiss Responsible Business Initiative

Technology

Terrorism

Academic Materials

Blogs

Asser Institute Doing Business Right Blog

Others

Upcoming Events

Asser Institute

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