Doing Business Right Blog

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.

International and Government Consultations, Reports and Guidance

Council of Europe - Recommendation on the roles and responsibilities of internet intermediaries

Dutch MFA - Government policy to stimulate international responsible business conduct

NGO and Law Firm Reports, Papers and Investigations

Amnesty International (UK) – Negligence in The Niger Delta Decoding Shell And Eni’s Poor Record on Oil Spills
Business and Human Rights Clinic of Columbia University - Pension Funds and Human Rights: A study of human rights considerations of pension funds
Business and Human Rights Resource Center - Modern Slavery Reporting: Case Studies Of Leading Practice
Human Rights Watch - Ecuador: Judicial Harassment of Amazonian Defenders
Harris Gleckman/Rosa Luxemburg Stiftung - Procedure and Format: Options for an UN Treaty on Business and Human Rights
International Alert - Human rights due diligence in conflict-affected settings: Guidance for extractives industries
KnowTheChain - Eradicating Forced Labor in Electronics: What Do Company Statements Under the UK Modern Slavery Act Tell Us?
OECD Watch - Calling for Corporate Accountability: A Guide to the 2011 OECD Guidelines for Multinational Enterprises
Responsible Mining Foundation – Responsible Mining Index 2018
Sancroft - Eliminating Modern Slavery in Public Procurement

In court

Campaign Against Arms Trade v. The Secretary of State for International Trade - Ruling on Permission to Appeal by the Court of Appeal
Okpabi and others v. Royal Dutch Shell Plc and another – NGO Submission to the UK Supreme Court under its Rule 15
Jesner v. Arab Bank, PLC - US Supreme Court Judgement
Tomasella v. The Hershey Company – Complaint to The District Court of Massachusetts, Tomasella v. Mars, Inc. et al – Complaint to The District Court of Massachusetts, Tomasella v. Nestle USA, Inc. - Complaint to The District Court of Massachusetts

In the news

Accountability

Daniel Boffey – Three Belgian firms are being prosecuted for chemicals export to Syria
The Egyptian Initiative for Personal Rights – Titan in Egypt caused harm to environment and health: Egyptian court
Reuters – Dutch shipping company and its directors found guilty by a Dutch court of illegally sailing ships to India to have them demolished

Corporate Social Responsibility

Shreya Khaitan – Superficial commitments to CSR among top 100 Indian companies

Environment

Eleanor Ainge Roy – No more offshore oil exploration permits in New Zealand
Jonathan Watts - Shell receives threat of legal action over its contributions to climate change
Nate Raymond – Another blow to Exxon Mobil by the Massachusetts top court
Valentina Ruiz Leotaud – OECD complaint over dam-burst in Brazil

Jennifer Rankin – Draft EU law to protect whistleblowers on tax avoidance and cheating product standards

Investment

Aamina Zafar – BNP Paribas to stop investing in tobacco stocks as part of its responsible investing policy
Sveinung Sleire – Ethical concerns raised by the Norwegian pension fund about investments linked to AI

Labour

Clean Clothes Campaign – The Bangladesh Accord must continue its work
Michelle Russell – Clean Clothes Campaign attacks on H&M for allegedly making false claims over its living wage commitments
Noam Scheiber – A blow by the California Supreme Court to the gig economy business model
OECD Watch – Submission to the German NCP about alleged labour rights violations at Adidas Indonesian supplier
The New Arab – New panel in Qatar to hear labour complaints

Land

Reuters – Cambodian farmers sue Thai sugar group over alleged land grab

Mining and Minerals

RAID - Mining giant ERG continues to violate the right to water and health in DRC despite the UK government recommendations

Occupied Territories

Business and Human Rights Resource Center – Asian NGOs urged UN to disclose the names of companies profiting from illegal settlements
Palestine Forum Japan – Honda to cancel a racing event originally planned to take place in an Israeli settlement in the occupied West Bank

Sanctions

Lesley Wroughton and Timothy Gardner – US to impose sanctions on South Sudanese oil companies to fight against war financing

Slavery

Ana Ionova – Success or Failure? UK Modern Slavery Act
Betsy Woodruff – Pentagon Contractor’s enslavement of workers
Kieran Guilbert – Modern Slavery continues in UK construction industry

Social Media

BBC – UN says Facebook played a determining role in incitement of violence to Rohingya Muslims
Owen Bowcott and Alex Hern – Lawsuits against Facebook and Cambridge Analytica

Terrorism

Liz Alderman, Elian Peltier and Hwaida Saad – Lafarge in Syria

Transparency

Human Rights Watch – A call to jewelry and watch firms to disclose information on their suppliers

Books

Sébastien Duyck, Sébastien Jodoin, Alyssa Johl - Routledge Handbook of Human Rights and Climate Governance, Routledge, 2018.

Speeches, Videos and Interviews

Sundhya Pahuja - Hersch Lauterpacht Memorial Lecture 2018: The Changing Place of the Corporation in International Law

Academic Materials

Carsten Stahn - Liberals vs. Romantics: Challenges of an Emerging Corporate International Criminal Law
Eric de Brabandere - Human Rights and International Investment Law
Huib Huyse and Boris Verbrugge - Belgium and The Sustainable Supply Chain Agenda: Leader or Laggard? Review of human right due diligence initiatives in the Netherlands, Germany, France and EU, and implications for policy work by Belgian civil society
Larry Catá Backer - Unpacking Accountability in Business and Human Rights: The Multinational Enterprise, the State, and the International Community
Mark Anner - Binding Power: The Sourcing Squeeze, Workers’ Rights, and Building Safety in Bangladesh Since Rana Plaza
Matthias Weller and Alexia Pato - Local Parents As ‘Anchor Defendants’ in European Courts for Claims Against Their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation: Recent Case Law and Legislative Trends
Paul M. Barrett, Dorothée Baumann-Pauly, April Gu - Five Years After Rana Plaza: The Way Forward
Valentina Azarova - The Bounds of (Il)Legality: Rethinking the Regulation of Transnational Corporate Wrongs

Blogs

Asser Institute Doing Business Right Blog

Raam Dutia and Abdurrahman Erol - Background paper - Rana Plaza: Legal and regulatory responses
Antoine Duval - Five Years Later: What have we learned from the Rana Plaza disaster?
Raam Dutia - Five Years Later: Locating justice, seeking responsibility for Rana Plaza
Abdurrahman Erol - Five Years Later: Why do the Accord, the Alliance and the National Initiative perform differently in terms of remediations?
Abdurrahman Erol - Five Years Later: Evaluating the French and Dutch responses to Rana Plaza

Others

Alessandra De Tommaso - Blurring the Line between Criminal and Civil Liability of Corporations in Jesner v Arab Bank
Alessandra de Tommaso - Corporate criminal liability under international law
Alison Macdonald - Should companies have a duty to prevent human rights abuses? (*)
Ciara Hackett, Ciaran O’Kelly, Clare Patton and Luke Moffett - Complicity issues and redress for victims in the aftermath of Jesner v Arab Bank
Claudia Müller-Hoff - The OECD complaint mechanism: remedy or complicity?
David Kinley - Finance struggles to find a social conscience
John Ruggie - The New Normal of Human Rights Due Diligence
Liana Foxvog and Christie Miedema - Why all companies sourcing apparel from Bangladesh should join the 2018 Accord
Marisa McVey - A Long and Winding Road to Corporate Accountability: The Wider Ramifications of Jesner v Arab Bank
Nadia Bernaz - Unnecessary, Wrong, and Misguided – the US Supreme Court’s Blanket Ban on All ATS Suits against Foreign Corporations in Jesner v Arab Bank
Paul Lorentz - Jesner v. Arab Bank : quand l’originalisme américain marche sur la tête
Rebecca MacKinnon - Facebook is part of an industry-wide problem: lack of transparency about policies affecting users’ online rights
Samuel Moyn - Time to Pivot? Thoughts on Jesner v. Arab Bank
Tara Van Ho - Corporate Action and the Failings of the Jesner Decision

Upcoming Events

21 May 2018 - What business should do when national laws conflict with international human rights, British Institute of International and Comparative Law-London
23 May 2018 - The Investment Treaty regime: A key element for corporate power, Webinar
24 May 2018 - Unpacking mandatory Human Rights Due Diligence developments in Europe. Session 3 - The Netherlands: Child Labour due Diligence Law, Webinar
24 May 2018 - The Jesner ruling of the U.S. Supreme Court: The ‘end of the beginning’ for corporate liability under the Alien Tort Statute, T.M.C. 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