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

• OHCHR – UN human rights experts welcome EU agreement on sustainable investment disclosure
• OHCHR – Update on OHCHR's project on non-State-based grievance mechanisms (ARP III)
• United Nations – UN Forum on Business and Human Rights Concept Note

NGOs, CSOs and Human Rights Organisations Publications and Statements 

• Amnesty International – Israel/OPT: Reversal of Airbnb ban on illegal settlement listings deeply shameful
• Clean Clothes Campaign, International Labor Rights Forum, Maquila Solidarity Network, and Worker Rights Consortium – Bangladesh Government’s Safety Inspection Agencies Not Ready to Take Over Accord’s Work
• CORE – Access to Legal Remedies for Victims of Corporate Human Rights Abuses in Third Countries
• CORE – Ahead of Supreme Court ruling in human rights case against mining company, UK NGOs and unions call for new law to curb multinationals’ global abuses
• Danish Institute for Human Rights and the German Institute for Human Rights – Case studies and workshop report: Remedy in business and human rights cases
• Fern – Chocolate Companies and MEPS Call for EU Due Diligence Regulation
• Friends of the Earth International – Friends of the Earth Netherlands submits legal summons in historic climate case against Shell
• Human Rights Centre at the University of Essex – Investor Obligations in Occupied Territories: A Report to the Norwegian Government Pension Fund – Global
• Human Rights Watch – “Paying for a Bus Ticket and Expecting to Fly”: How Apparel Brand Purchasing Practices Drive Labor Abuses
• Human Rights Watch – US: Pass Law to Stem Corruption, Promote Rights
• International Commission of Jurists – Vedanta Resources and subsidiary to face justice in the UK over human rights harms in Zambia
• Know The Chain – Forced Labor Action Compared: Findings from Three Sectors
• Know The Chain – Three Sectors, Three Years Later: Progress and Gaps in the Fights Against Forced Labor
• Oxfam Novib – OECD Guidelines: Banks must publish climate targets in line with Paris Climate Agreement
• Oxfam Novib – The First Step is the Hardest: Dutch Supermarket Jumbo Moves in the Right Direction
• SOMO – Dutch Agreement on Sustainable Garments and Textile is currently a paper tiger
• The Freedom Fund – Seeing Through Transparency: Preventing Human Trafficking and Forced Labour through Corporate Accountability
• Uzbek-German Forum for Human Rights – They said we wouldn’t have to pick and now they send us to the fields: Forced Labor in Uzbekistan’s Cotton Harvest 2018

Government Press Releases and Publications

• United Kingdom – Online Harms White Paper

In Court

• UK Supreme Court – Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents)

In the News

• Amazon Watch – Amazon Watch Statement on Canadian Supreme Court's Refusal to Hear Appeal Regarding Chevron Subsidiary in Enforcement Action
• BBC News – EU law fixes minimum rights for 'gig economy' workers
• Devex – German draft law on abuses in supply chains faces uncertain future
• Dismantle Corporate Power – The Case of Chevron in the Ecuadorian Amazon: The Ruling of the Supreme Court of Canada Closes the Doors to End Impunity
• Global Witness – Global Witness Statement on Launch of London Metal Exchange Responsible Sourcing Roadmap
• Global Witness – Too Good to Be True: Shell’s Sweet Deal
• Handelsblatt – Textile Industry: Supply Chain Law Endangers Existence of Firms
• Hogan Lovells – Vedanta: UK Supreme Court takes the “straitjacket” off claims against parent companies in the English Courts
• Leigh Day – High Court rules chicken catcher bosses exploited workers in modern slavery case
• Leigh Day – Lungowe & Others v Vedanta and KCM Parent company liability clarified
• Medium – Ruling due in Esther Kiobel’s epic legal battle against Shell
• Open Democracy – What happens when NGOs are accused of violating human rights?
• Reuters – Chevron says Dutch Supreme Court rejects Ecuador's $9.5 billion claim
• Reuters – Explainer: How countries are getting tougher with mining companies
• Reuters – UPDATE 1-Dutch sweets giant probes 'attack' on Bangladesh factory workers
• The Daily Star – Post-Rana Plaza, what we have achieved and what we haven't
• The Guardian – Australian fashion brands must improve on workers' rights, report says
• The New York Times – Climate Change Could Destroy His Home in Peru. So He Sued an Energy Company in Germany
• The New York Times – Syrian Refugees Toil on Turkey’s Hazelnut Farms With Little to Show for It
• The Times – Law on parent company liability moving in right direction
• Thomson Reuters Foundation News – Fashion giant H&M lists suppliers for all garments to tackle worker abuses

Academic Materials

• Elke Schuessler, Stephen Frenkel, Chris Wright – Governance of Labor Standards in Australian and German Garment Supply Chains: The Impact of Rana Plaza – Industrial and Labor Relations Review
• Mary Footer – Business, Human Rights and Security – Business and Human Rights Journal
• Penelope Simons and Melisa Handl – Relations of Ruling: A Feminist Critique of the United Nations Guiding Principles on Business and Human Rights and Violence against Women in the Context of Resource Extraction – Canadian Journal of Women and the Law

Blogs           

Asser Institute Doing Business Right Blog

• Maisie Biggs – Loosening the Jurisdictional Straitjacket: The Vedanta Ruling and the Jurisdiction of UK Courts in Transnational Civil Liability Cases
• Shamistha Selvaratnam – The Rise of Human Rights Due Diligence (Part I): A Short Genealogy

Others

• Anil Yilmaz Vastardis – Vedanta v. Lungowe Symposium: Potential Implications of the UKSC’s Decision for Supply Chain Relationships – Opinio Juris
• Caio Borges – Why Brazil needs a new law on supply chain reporting and mandatory human rights due diligence – CORE
• Carlos Lopez – Symposium on Vedanta Resources Plc vs Lungowe
• Caroline Emberson – What effect has supply chain legislation had on the prevalence of modern slavery in Brazil? – CORE
• Claire Bright – Vedanta v. Lungowe Symposium: Foreign Direct Liability Cases in England After Vedanta – Opinio Juris
• Doug Cassel – Vedanta v. Lungowe Symposium: Beyond Vedanta–Reconciling Tort Law with International Human Rights Norms – Opinio Juris
• Gabrielle Holly – Vedanta v. Lungowe Symposium: A Non Conveniens Revival–The Supreme Court’s Approach to Jurisdiction in Vedanta – Opinio Juris
• Gabrielle Holly – Zambian farmers can take Vedanta to court over water pollution. What are the legal implications? – Business & Human Rights Resource Centre
• Geert Van Calster – Modern Families. UK Supreme Court confirms CSR jurisdiction against mother and daughter in Lungowe v Vedanta and Konkola – yet with one or two important caveats – GAVC Law
• Isobel O’Connell – Canada has a new Responsible Enterprise watchdog - is it enough to tackle corporate human rights abuse? – Business & Human Rights Resource Centre
• Jolyon Ford – Can consumers and market actors ‘regulate’ corporate reporting on Modern Slavery risk? – Business & Human Rights Resource Centre
• Laura Green and David Hamer – Corporate Responsibility for Human Rights Violations: UK Supreme Court Allows Zambian Communities to Pursue Civil Suit Against UK Domiciled Parent Company – EJIL: Talk!
• Lucas Roorda – Vedanta v. Lungowe Symposium: Vedanta v. Lungowe and Access to Justice – Opinio Juris
• Nadia Bernaz – Not quite ‘beating your head against a brick wall’: the Supreme Court’s decision in Vedanta v. Lungowe – Opinio Juris
• Robert McCorquodale – Parent Companies can have a Duty of Care for Environmental and Human Rights Impacts: Vedanta v Lungowe – Cambridge Business & Human Rights Blog
• Robert McCorquodale – Vedanta v. Lungowe Symposium: Duty of Care of Parent Companies – Opinio Juris
• Sanne Taekema – How Effective Are the OECD National Contact Points? Lessons from the Bralima Case – Erasmum School of Law Blog
• Sophia Pickles – We need a global standard on corporate abuse in supply chains - this week's OECD forum in Paris could be the start – Business & Human Rights Resource Centre

Call for Papers, Submissions and Abstracts

• Call for blogs – Business and Human Rights Journal Blog – Cambridge University
• Call for session proposals and snapshot proposals – UN Forum on Business and Human Rights
  

Upcoming Events

• 14-16 May 2019 – Innovate Rights: New Thinking on Business and Human Rights 2019 – Australian Human Rights Institute, Sydney, Australia
• 21 May 2019 – Event on Vedanta v Lungowe – Business and Human Rights Practitioners’ Network, London, England
• 23 May 2019 – Towards Criminal Liability of Corporations for Human Rights Violations: The Lundin Case in Sweden – TMC Asser Institute, The Hague, The Netherlands
• 24-28 June 2019 – Business & Human Rights Summer School – Human Rights International Corner, Rome, Italy
• 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 in cooperation with the European Center for Constitutional and Human Rights, Nuremberg, Germany
• 12-13 September 2019 – Global Business and Human Rights Scholars Association 5th Annual Conference – University of Essex, Colchester, England
• 16-18 October 2019 – 4^th Coimbra International Conference on Human Rights: a transdisciplinary approach – CIDH Coimba, Portugal
• 25-27 November 2019 – UN Forum on Business and Human Rights – Geneva, Switzerland

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

• ActionAid International, Amnesty International, Anti-Slavery International, Clean Clothes Campaign, European Coalition for Corporate Justice, International Federation for Human Rights – NGOs welcome MEP initiative on responsible business conduct: Joint statement

• Al-Haq – Al-Haq’s Comments and Proposals on the Zero Draft Treaty

• Amnesty International – Think Twice: Can companies do business with Israeli settlements in the Occupied Palestinian Territories while respecting human rights?

• Business & Human Rights Resource Centre – The Future of Work: Litigating Labour Relationships in the Gig Economy

• Center for Constitutional Rights – Silber, et al. v. Airbnb

• CORE – Access to Legal Remedies for Victims of Corporate Human Rights Abuses in Third Countries

• Corporate Human Rights Benchmark – Report on the 2018 Appeals Process

• European Coalition for Corporate Justice – A Human Rights Review of the EU Non-Financial Reporting Directive

• Friends of the Earth Europe – Leak: EU to back out of UN treaty on business and human rights

• Global Witness – Global Witness Celebrates Significant Agreement and Shift in Mind-Set from the EU on Investor Due Diligence

• Inclusive Development International – Human rights complaint filed to UK government against ethical sugar association Bonsucro

• International Service for Human Rights – HRC40 | Council unanimously recognises vital role of environmental human rights defenders

• Law Firm Business and Human Rights Peer Learning Process – Leading And Emerging Practice: Challenges and Opportunities for Firms Implementing the UN Guiding Principles: Summary Report

• OECD Watch – IDI, EC, and LICADHO v. Bonsucro

• OECD Watch – TuK Indonesia vs. Roundtable on Sustainable Palm Oil (RSPO)

• Reporters without Borders – China: RSF calls for release of three journalists investigating workers conditions

• Shift – How Value Chain Mapping is Helping Companies Respect Human Rights
  

Government press releases and publications

•  Australian Government – Modern Slavery Act 2018: Draft Guidance for Reporting Entities

• Commission Nationale Consultative Des Droits De L’Homme, France – National Business and Human Rights Action Plan: a new mandate as Independent Rapporteur for the CNCDH
  

Company press releases and publications

• ABN AMRO – Human Rights Report 2018
  

In Court

• US Supreme Court – Jam et al. v International Finance Corporation
  

In the News

• Euractiv – Companies will support EU law on due diligence, but need assurances on liability

• Euractiv – Gearing up for fair globalisation and accountable business

• Fair Observer – The Way Ahead for a UN Treaty on Business and Human Rights

• Financial Times – Overseas Chinese workers sue Saipan casino for ‘forced labour’ 

• Frontier Myanmar – Garment factories supplying EU market accused of targeting union leaders

• International Consortium of Investigative Journalists – No Longer Above The Law, The World Bank Faces Fight Of Its Life

• Open Democracy – Corporate social responsibility helps hide workers’ rights abuse until brands can quietly exit

• Reuters – Dutch prosecutors target Shell over Nigeria oil deal

• The Times – Union row costs Fyffes its ethical recognition

• Thomson Reuters Foundation – M&S reveals tea suppliers to address worker abuse concerns

• Vice News – Barrick Gold has been hit with a multi-billion dollar lawsuit
  

Academic Materials

• David Birchall – The Consequentialism of the UN Guiding Principles on Business and Human Rights: Towards the Fulfilment of ‘Do No Harm’ – Electronic Journal of Business Ethics and Organization Studies

• Mark Dawson, Daniel Augenstein and Pierre Thielbörger – The UNGPs in the European Union: The Open Coordination of Business and Human Rights? – Business & Human Rights Journal

• Radu Mares – Securing Human Rights Through Risk-Management Methods: Breakthrough or Misalignment? – Leiden Journal of International Law
  

Blogs           

• Amy Sinclair – Australia: Tackling modern slavery now a matter of legal compliance – Business & Human Rights Resource Centre

• Ben Slade – Addressing inequalities of power: Landmark class action seeks justice for 15,500 Indonesian seaweed farmers affected by 2009 Montara oil spill – Business & Human Rights Resource Centre

• Christie Miedema – Dhaka fire shows that Bangladesh must build better safety systems, rather than scrap the Accord – Business & Human Rights Resource Centre

• Francine Mukazi – Enabling voices, demanding rights: How to ensure responsible investment in land for women – Business & Human Rights Resource Centre

• Heather Moore – Good modern slavery policy, more than the sum of its parts – Business & Human Rights Resource Centre

• Jans Eijsbouts – International business and human rights arbitration, a trustworthy remedy – Maastricht University Blog

• Kebene Wodajo – Social audit reform options: towards auditor liability and multi-stakeholder oversight – Business & Human Rights Resource Centre

• Kirk Herbertson – What does the US Supreme Court's decision on IFC impunity mean for Indian fisherfolk? – Business & Human Rights Resource Centre

• Maysa Zorob – Who is an 'employee' in the gig economy - and can the courts help protect labour rights? – Business & Human Rights Resource Centre

• Patricia Carrier – The Modern Slavery Act turns four today. Is it working? And how can it be improved? – Business & Human Rights Resource Centre

• Penelope Kyritsis, Genevieve LeBardon and Mark Anner – New buzzword, same problem: How 'worker voice' initiatives are perpetuating the shortcomings of traditional social auditing – Business & Human Rights Resource Centre

• Rhoda Guetta – The CSR challenge for Chinese ELCs in Cambodia – Business & Human Rights Resource Centre

• Saul Takahashi – ‘It is like hell’: Garment workers for Japanese brands say factory conditions violate their rights – Business & Human Rights Resource Centre

• Vanessa Zimmerman – 5 reasons to read the Australian Government's new draft modern slavery reporting guidance for business – LinkedIn
  

Call for Papers, Submissions and Abstracts

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

• Call for session proposals and snapshot proposals – UN Forum on Business and Human Rights
  

Upcoming Events

• 24 April 2019 – Human Rights and the Immunity of International Financial Institutions - Reflections on the Landmark US Supreme Court Decision in Jam v. IFC – TMC Asser Institute, The Hague, The Netherlands

• 29 April 2019 – Shareholder Advocacy Leadership Workshop – Interfaith Center on Corporate Responsibility & Investor Alliance for Human Rights, New York, United States

• 30 April 2019 – Social Norms, Soft Law, Hard Law: The Evolution of Business and Human Rights (presented by John Ruggie) – Castan Centre, Melbourne, Australia

• 30 April-1 May 2019 – Rebuilding Trust in Corporate Australia – Business as an Agent of Sustainable Change (John Ruggie to present on 1 May) – Global Compact Network of Australia, Melbourne, Australia

• 8 May 2019 – FIFA and Human Rights: Impacts, Policies, Responsibilities – TMC Asser Institute, The Hague, The Netherlands

• 8 May 2019 – Care or duty (fulfillment)? Interdisciplinary workshop on due diligence – Universität Bern, Bern, Switzerland

• 14-16 May 2019 – Innovate Rights: New Thinking on Business and Human Rights 2019 – Australian Human Rights Institute, Sydney, Australia

• 23 May 2019 – Towards Criminal Liability of Corporations for Human Rights Violations: The Lundin Case in Sweden – TMC Asser Institute, The Hague, The Netherlands
  

• 24-28 June 2019 – Business & Human Rights Summer School – Human Rights International Corner, Rome, Italy

• 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 in cooperation with the European Center for Constitutional and Human Rights, Nuremberg, Germany

• 12-13 September 2019 – Global Business and Human Rights Scholars Association 5th Annual Conference – University of Essex, Colchester, England

• 25-27 November 2019 – UN Forum on Business and Human Rights – Geneva, Switzerland