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

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 of 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

German court rejects KiK lawsuit

On 10 January 2019, a regional court in Dortmund, Germany rejected a lawsuit brought by four affected Pakistanis that related to the death of 262 people and injury of 32 people at a Pakistani textile factory in 2012. The factory was a key supplier to German clothing company, KiK. The case was rejected on the basis that the statute of limitations had expired, despite computer simulation evidence demonstrating that inadequate safety measures were in place at the factory at the time, including no stairs and emergency exits, as well as a lack of fire extinguishers and fire alarms. It was argued that KiK ‘knew or should have known about the structural details if, as they claim, their representatives visited the factory several times’. Read more here and here.

Canadian Supreme Court hears Nevsun appeal

On 23 January 2019, the Canadian Supreme Court heard evidence involving a lawsuit involving Nevsun Resources, a Canadian mining company, which is accused of being complicit in using forced labour by one if its sub-contractors at the Bisha mine in Eritrea. The case was initially brought in 2014 by four Eritrean miners.

In 2016, the British Colombian Supreme Court rejected Nevsun’s motion to dismiss the lawsuit, which was upheld by the British Colombian Court of Appeal in 2017. In 2018, the Canadian Supreme Court allowed Nevsun to appeal the decision of the British Colombian Court of Appeal with the trial being heard earlier this year. The Canadian Supreme Court will need to decide, inter alia, whether it has jurisdiction to hear cases involving alleged breaches of customary international law by a Canadian business involving its actions in a foreign country. Read more here.

Canada introduces bill regulating forced labour and child labour within businesses

On 13 December 2018 a private members bill was introduced in Canada titled ‘C-423 – An Act respecting the fight against certain forms of modern slavery through the imposition of certain measures and amending the Customs Tariff’ (the Bill) to regulate forced labour and child labour in businesses. The Bill requires certain entities[1] to provide the Minister with an annual modern slavery report that sets out the steps it has taken to ‘prevent and reduce the risk that forced labour or child labour is used at any step of the manufacture, production, growing, extraction or processing of goods in Canada or elsewhere by the entity or of goods imported into Canada by the entity.’ Other criteria that must be included in the report includes the entity’s policies in relation to forced labour and child labour and the training provided to employees on these areas. The Bill carries penalties for non-compliance; namely, the relevant entity may be liable of an offence punishable on summary conviction and liable to a fine of up to $250,000.

UK releases report with recommendations to improve transparency in supply chains provision of Modern Slavery Act

The Independent Review of the UK Modern Slavery Act recently released an interim report. The report notes that the UK Government’s current approach to eradicating modern slavery in supply chains through the transparency in supply chains provision ‘while a step forward, is not sufficient’. Among other things, the report recommends that the UK Government should take the following action to improve its approach to addressing modern slavery in supply chains:

• Establish an internal list of companies in scope of the transparency in supply chains provision and check with companies whether they are covered by the legislation.
• Amend the option reporting criteria against which businesses may report, so that they are mandatory criteria against which businesses must report.
• Set up a central government-run repository to which companies are required to upload their statements and that is easily accessible to the public, free of charge.
• Empower the Independent Anti-Slavery Commissioner to monitor compliance and report annually.
• Strengthen the Modern Slavery Act’s approach to tackling non-compliance with the reporting requirement, adopting a gradual approach. For example, initial warnings, fines (as a percentage of turnover), court summons and directors’ disqualification.
• Introduce sanctions gradually over the next few years so as to give businesses time to adapt to changes in the legislative requirements.
• Set up or assign an enforcement body to impose sanctions on non-compliant companies.

UN and International organisations publications and statements

• European Commission – Commission publishes draft rules to ensure investment firms and insurance distributors consider sustainability topics when advising clients
• International Labour Organization – ILO and H&M Group expand partnership
• European Commission – EU steps up engagement with Republic of Korea over labour commitments under the trade agreement
• Letter from Chair-Rapporteur of the Working Group on the issue of human rights and transnational corporations and other business enterprises to Bangladeshi Government
• OECD – Human rights is an integral part of responsible business conduct
• UN General Assembly – Guiding principles on human rights impact assessments of economic reforms: Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights

NGO and Law Firm publications and statements

•  Amnesty International – Destination: Occupation – Digital Tourism and Israel’s Illegal Settlements in the Occupied Palestinian Territories

• Business & Human Rights Resource Centre – From Unacceptable Risks to Shared Prosperity: Building Human Rights into Jordan & Lebanon’s Construction Sector
• Business and Human Rights Resource Centre and Human Rights Now – Human rights concerns in the Japanese apparel industry: A majority of companies fail to implement mechanisms to either prevent or address human rights abuses
• Cambodian Center for Human Rights – Briefing Note on Business and Human Rights Preventing, Mitigating and Remedying Land-Related Rights Violations in the Kingdom of Cambodia: Seven Areas for Improvement
•  CHRB Response to Brumadinho Dam Disaster – Vale Suspension from Human Rights Benchmark
• CORE’s and ICJ’s Draft Statement of Intervention in the Vedanta case
• Engineers Against Poverty – Protecting the Wages of Migrant Construction Workers Part Two: Addressing the problem in Gulf Cooperation Council countries
• Ergon Associates and Ethical Trading Initiative – Managing Risks Associated with Modern Slavery: A Good Practice Note for the Private Sector
• European Center for Constitutional and Human Rights – Regional Court in Dortmund dismisses Pakistanis’ complaint against KiK: KiK evades its legal responsibility for factory fire
• Hogan Lovells – The Australian Modern Slavery Bill: the next frontier in corporate accountability for adverse human rights impacts
• Human Rights at Sea Legal Research Programme – A UN Convention on Business and Human Rights: How it would look for the maritime sector: legal and practical implications
• Human Rights Law Centre – Nowhere to Turn: Addressing Australian corporate abuses overseas
• Human Rights Law Centre – Report highlights impunity of Australian companies linked to serious human rights violations overseas
• Human Rights Watch – Australia Starts Tackling Modern Slavery: New South Wales Adds Penalties for Offenders Under State Law
• Institute for Human Rights and Business – Top 10 Business and Human Rights Issues 2019
• International Commission of Jurists – CORE and ICJ to intervene in UK Supreme Court case
• International Corporate Accountability Roundtable – Good Business: The Economic Case for Protecting Human Rights
• International Corporate Accountability Roundtable, Frank Bold and BHR Young Researchers Summit – Good Business: The Economic Case for Protecting Human Rights
• Know The Chain – 2018 Footwear & Apparel Benchmark Findings Report
• Shift – Human rights reporting in the Canadian mining sector: Maturity trends and insights
• Shift – How to Write a More Meaningful Update Report Under the French Duty of Vigilance Law

In Court

• BBC News – Apple loses legal battle with French tax activists
• Coconuts Jakarta – Supreme Court upholds IDR 1 trillion decision against company for damages caused by forest fires
• Expatica – Sierra Leone abuse claimants lose UK court case
• FIDH – ILVA scandal: following the ECHR decision, Italy must take immediate action to end the environmental crisis
• High Court of Justice in the Queen’s Bench Division (London) – Kalma v African Minerals Limited
• Honolulu Civil Beat – Lawsuit Filed By Injured Chinese Workers Against Saipan Casino
• Reuters – Thai top court orders compensation for Myanmar workers in landmark case
•  Rights and Accountability in Development – UK Supreme Court Hears Landmark Case on Corporate Rights Violations
• Times Live – Ex-Ford Argentina executives convicted in torture case

In the News

• ABC News – Brazil's new President Jair Bolsonaro rolls back Indigenous tribe protections
• Asia Times – Thai junta takes the stench off troubled fisheries industry
• BIV – Activists file securities complaints against Vancouver miners
• Bloomberg – Shell, Eni Face $1.1 Billion Nigerian Lawsuit Over 2011 Deal
• Borden Ladner Gervais – Canada: Business And Human Rights: The Stakes Continue To Grow
• Brookings – How corporations are approaching sustainability and the Global Goals
• Business and Human Rights in Burma / Myanmar – The Vedanta Appeal, Corporate Liability and Access to Justice: Relevance for Myanmar?
• Business for Social Responsibility – Why Multilateral Human Rights Bodies and Frameworks Are Vital for Business: How Companies Can Support the International Human Rights Regime
• Business in Vancouver – B.C. firm seeks to reopen troubled Guatemalan mine
•  CBC – Top court weighs precedent-setting case of human rights breaches at Canadian mine in Eritrea
• CBC – What did Canadian mining executives know about possible human rights violations in Eritrea?
• Climate Liability News – 2018 in Climate Liability: When a Trend Became a Wave
• Delta 8.7 – Fighting Modern Slavery in Supply Chains from the Bottom Up
• EcoWatch – Indigenous Group Sues Exxon, Energy Majors Over Fracking Waste Contamination in Patagonia
• Ethical Corporation – The UK should listen to MPs and fix the holes in the Modern Slavery Act
• Fashion United – What’s next for the Bangladesh Accord? Q&A
• Financial Post – Supreme Court set to hear Nevsun Resources case on Eritrea human rights abuses
• Financial Times – Beyond the bottom line: should business put purpose before profit?
• Financial Times – We must rethink the purpose of the corporation
• Freedom United – Will Nevsun Mining be Punished for Slavery Abroad?
• Global Witness – Global Witness Welcomes Canadian Regulator Ruling on Glencore – Controlled Companies and Executies
• Hellenic Shipping News – Another Dutch ship owner faces huge fine for having beached a vessel
• HuffPost – Modern Slavery Bill Targets Canadian Imports Of Goods Made By Slaves
•  Institute for Human Rights and Business – Channelling Sir Geoffrey Chandler on the History and Future of Business and Human Rights
• International The News – Saeeda Khatoon’s story remains untold in Dortmund court
• IOL – Mining companies rake in huge profits while communities live in poverty
• Juneau Empire – Alaska Native tribes allege human rights violation over Canadian mine pollution
• Khmer Times – W&D followed law when firing workers: GMAC
•  Leigh Day – Statement by Leigh Day in relation to the settlement of the human rights claims against Gemfields Ltd
•  Moneyweb – 3 court judgments that have changed the face of mining in SA
• Open Democracy – Corporate social responsibility helps hide workers’ rights abuse until brands can quietly exit
• Open Global Rights – New business and human rights treaty takes shape
• Radio Free Asia – Chinese Railway Project in Laos Leaves Farmers in the Lurch
• Reuters – Eni, Shell knew of 'sharks' in Nigeria graft case - judge
• SOMO – Higher minimum wage in Myanmar: bad news for workers?
• The Guardian – 'Inhuman conditions': life in factory making Spice Girls T-shirts
• The Guardian – NHS rubber gloves made in Malaysian factories accused of forced labour
• The Guardian – Zambian villagers await outcome of UK mining firm's pollution case appeal
• The Jakarta Post – Environmentalists face greater risks amid development drive
• The Nation – Big Business has a New Scam: the ‘Purpose Paradigm’
• The Wall Street Journal – Glencore-Controlled Miner to Be Fined by Canadian Authorities Over Congo Ops
• Thomson Reuters Foundation – Construction companies failing to protect refugee workers in Jordan, Lebanon - study
• Times Live – Victory for environmentalists in battle over coal mine in Mpumalanga

Academic Materials

• Carsten Momsen and Mathis Schwarze – The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law, The Official Journal of the Society for the Reform of Criminal Law
• Catie Shavin – Unlocking the Potential of the New OECD Due Diligence Guidance on Responsible Business Conduct, Business and Human Rights Journal
• Charis Kamphuis and Leah Gardner – Effectiveness Framework for Home-State Non-Judicial Grievance Mechanisms
• Cristina Narváez González and Katharine Valencia – Improving Human Rights in the Private Security Industry: Envisioning the Role of ICoCA in Latin America, Forthcoming chapter in Amissi M. Manirabona & Yenny Vega Cardenas, eds, Extractive Industries and Human Rights in an Era of Global Justice: New Ways of Resolving and Preventing Conflicts (LexisNexis, 2019)
• David Bilchitz – The Necessity for a Business and Human Rights Treaty, Business and Human Rights Journal
• David Hess – The Transparency Trap: Non-Financial Disclosure and the Responsibility of Business to Respect Human Rights, American Business Law Journal
•  James Gathii and Sergio Puig – Introduction to the Symposium on Investor Responsibility: The Next Frontier in International Investment Law, American Journal of International Law
•  Kai Ambos and Carsten Momsen – Introduction: Human Rights Compliance and Corporate Criminal Liability, The Official Journal of the Society for the Reform of Criminal Law
• Mark Pieth – Corporate Compliance and Human Rights, Criminal Law Forum
• Marya Farah and Maha Abdallah – Security, Business and Human Rights in the Occupied Palestinian Territory, Business and Human Rights Journal
• Mavluda Sattorova – Investor Responsibilities from a Host State Perspective: Qualitative Data and Proposals for Treaty Reform, American Journal of International Law

Blogs           

Asser Institute Doing Business Right Blog

• Asser Institute – Modern Slavery in our backyard: Dutch shipbuilders, Polish shipyards and North Korean Slaves
• Shamistha Selvaratnam – Global Modern Slavery Developments (Part III): Other Modern Slavery Developments
• Shamistha Selvaratnam – Global Modern Slavery Developments (Part II): A Review of the New Australian Modern Slavery Act

Others

•  Aaron Halegua – Labour exploitation in Saipan (again): what difference does 20 years make?, Business and Human Rights Resource Centre

• Amy Sinclair and Justine Nolan – The Australian Modern Slavery Act 2018 – will it live up to expectations?, Business and Human Rights Resource Centre
• Carlos Lopez – The UK Supreme Court considers whether parent company Vedanta has a duty of care and so may be held legally responsible for the harm caused by its Zambian subsidiary, Opinio Juris
• Diane Desierto – Are “Transparency” Procedures and Local Community “Consultations” Enough? A Human Rights “Feedback Loop” to International Economic Law Reforms of 2018, EJIL: Talk!
• Elsa Savourey – France's law on the corporate duty of vigilance: process, pedagogy and pragmatism as the way forward, Business and Human Rights Resource Centre
• Flora Sapio – Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 2, Statement of Purpose), Law at the End of the Day
• Gabrielle Holly – Access to Remedy Under the UNGPs: Vedanta and the Expansion of Parent Company Liability, EJIL: Talk!
•  Irene Pietropaoli and Phil Bloomer – Governments can help make business more diligent on human rights, Business and Human Rights Resource Centre
• Joylon Ford – Can consumers and market actors ‘regulate’ corporate reporting on Modern Slavery risk? , Business and Human Rights Resource Centre
• Julia Dehm – Dirty deeds: how to stop Australian miners abroad being linked to death and destruction, The Conversation
• Kate Nicholl, Miriam Wilheim and Vikram Bhakoo – Almost every brand of tuna on supermarket shelves shows why modern slavery laws are needed, The Conversation
• Louise Chappell – The spotlight shifts to gender, business and human rights, Business and Human Rights Resource Centre
• Måns Carlsson-Sweeny – Modern slavery is more than an ‘ethical issue’ to investors, Business and Human Rights Resource Centre
• Maysa Zorob – New business and human rights treaty takes shape, Business and Human Rights Resource Centre
• Nadia Bernaz – Companies Operating in a Conflict or Post-Conflict Country: Exercise Leverage or Stand Ready for Litigation, Rights as Usual
•  Nicholas Bueno – The Swiss Responsible Business Initiative and its Counter-Proposal: Texts and Current Developments, Cambridge Core Blog
• Paul Redmond – At last, Australia has a Modern Slavery Act. Here’s what you’ll need to know, The Conversation
• Virginie Rouas – Access to justice and the new French Act on the duty of care: main opportunities and challenges for plaintiffs, Cambridge Core Blog

Call for Papers and Abstracts

•  Call for Papers – Global Business and Human Rights Scholars Association 5th Annual Conference 12-13 September 2019 (abstracts due 1 March 2019)

• Call for Blogs –Business and Human Rights Journal Blog – Cambridge University

Upcoming Events

• 13-14 February 2019 – 2019 OECD Forum on Due Diligence Guidance in the Garment and Footwear Sector – Paris, France
• 20 February 2019 – International law in the vegetables department: the Swedish boycott of conflict tomatoes – Asser Institute, The Hague, The Netherlands
• 25 March 2019 – Is Corporate Accountability Possible in Capitalism? – British Institute of International and Comparative Law, London, England
• 1 April 2019 – Workshop on giving SMEs the right tools & support to respect human rights – International Organisation of Employers, Madrid, Spain
• 2 April 2019 – Workshop for Employers’ Organisations on Business & Human Rights – International Organisation of Employers, Madrid, Spain
• 3 April 2019 – International Conference on Business & Human Rights – International Organisation of Employers & Confederación Española de Organizaciones Empresariales, Madrid, Spain
• 11-12 April 2019 – Business & Human Rights Young Researchers Summit – St. Gallen, Switzerland
• 22-26 July 2019 – International Summer Course Human Rights Law in Context (special focus on business and human rights) – Centre for Human Rights Erlangen-Nürnberg (CHREN) in cooperation with the European Center for Constitutional and Human Rights (ECCHR), Nuremberg, Germany
• 12-13 September 2019 – Global Business and Human Rights Scholars Association 5th Annual Conference – University of Essex, Colchester, England

[1] An ‘entity’ is defined as a corporation or a trust, partnership or other unincorporated organisation that: (a) is listed on a stock exchange in Canada; (b) has a place of business in Canada, does business in Canada or has assets in Canada and that, based on its consolidated financial statements, meets at least two of the following conditions for at least one of its two most recent financial years: (i) it has at least $20 million in assets, (ii) it has generated at least $40 million in revenue, (iii) it employs an average of at least 250 employees.