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
Amnesty
International reports Shell’s 1990s involvement in Nigerian human rights
violations
Amnesty International has released a report examining the
role that the British-Dutch
multinational oil and gas company Shell played in human rights violations
and crimes committed by Nigerian security forces in Ogoniland in the 1990s. As
the Movement for the Survival of the Ogoni People protested against Shell’s negative
environmental and social impact on the Ogoni community, Nigeria’s security
forces responded with a series of violent attacks leading to an estimated 1,000
deaths, destruction of ten villages and displacement of 30,000 people. In
preparing A Criminal Enterprise? Shell’s Involvement in Human Rights
Violations in Nigeria in the 1990s, Amnesty International reviewed
thousands of pages of internal company documents and witness statements. It concluded that “Shell repeatedly
encouraged the Nigerian military to deal with community protests, even when it
knew the horrors this would lead to – unlawful killings, rape, torture, the
burning of villages” and even provided money and logistical
assistance to the security forces. Amnesty International calls upon the governments of Nigeria,
The Netherlands and the United Kingdom to investigate, with a view to
prosecution, Shell and/or individuals who were formerly in decision-making or supervisory
positions within the company. Shell has always denied that the company played
any part in violence or human rights violations in Ogoniland, affirming that “the evidence will
show clearly that Shell was not responsible for these tragic events”.
Araya
v Nevsun: Court of Appeal rejects Nevsun’s attempt to dismiss Eritrean refugee
case
On 21 November 2017, the Court of
Appeal for British Columbia handed down its judgment in Araya v Nevsun
Resources Ltd., 2017 BCCA 401. The plaintiffs are Eritrean
refugees who claim they were forced to work in a gold mine owned indirectly by
Canadian mining company Nevsun and Eritrean state companies. The representative action is
based on allegations that “international law norms against forced labour,
slavery and torture were violated during the construction of the mine”, with
over 1,000 people allegedly conscripted into the military under the Eritrean
National Service Program and forcibly deployed at the mine in inhuman conditions,
under constant threat of physical punishment, torture and imprisonment. Nevsun
applied to have an earlier Supreme Court of British Columbia decision overturned and to have the action
stayed using several grounds, including arguing under the Court Jurisdiction and Proceedings Transfer Act that the forum conveniens would be an Eritrean court or tribunal. Nevsun
further argued for dismissal using the doctrine of act of state, and claimed
there is no right in Canada to a civil remedy for acts of torture committed
abroad, despite Canada being party to the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The Court of Appeal dismissed the
appeal, stating that “international law is ‘in flux’ and that transnational
law, which regulates ‘actions or events that transcend national frontiers’ is
developing, especially in connection with human rights violations that are not
effectively addressed by traditional ‘international mechanisms’”. It affirmed
that other “jurisdictions have been willing to hold corporate actors
accountable for violations of jus cogens;
and over time, the doctrine of act of state has been limited by public policy
considerations said to be part of domestic law”.
Yaiguaje
v Chevron: Court of Appeal denies Chevron’s attempt to block Ecuador
enforcement
On 31 October 2017, the Court of
Appeal for Ontario issued its decision in Yaiguaje v Chevron
Corporation, 2017 ONCA 827. In 2011, oil giant Chevron was ordered by an Ecuadorian court
to pay $18 billion (later reduced to $9.5 billion) to 30,000 Indigenous
villagers living in the Lago Agrio region of Ecuador for environmental damages
resulting from crude oil production in a claim dating back to 1993. When
Chevron refused to pay, the Indigenous Ecuadorians brought proceedings in
several jurisdictions where Chevron has assets, including Canada. Chevron
disputes the original Ecuadorian judgment and its enforceability in Canada, and
further requested that the plaintiffs pay $942,951 as security for costs of the
proceedings. However, the Court of Appeal stated that “Chevron Corporation and
Chevron Canada have annual gross revenues in the billions of dollars. It is
difficult to believe that either of these two corporations, which form part of
a global conglomerate with approximately 1,500 subsidiaries, require protection
for cost awards that amount or could amount to a miniscule fraction of their
annual revenues”. Accordingly, it dismissed Chevron’s claim, finding it
“difficult to accept that the motion for security for costs was anything more
than a measure intended to bring an end to the litigation”.
Company
Reports and Press Releases
●
FIFA
- FIFA publishes guide to bidding process for the 2026 FIFA
World Cup
Government
Consultations, Reports and Guidance
●
Accord
- Quarterly Aggregate Report
●
Canadian
National Contact Point - Final Statement: Endeavour Mining Corporation and a Labour
Union
●
European
Commission - Public consultation on institutional investors and asset
managers' duties regarding sustainability
●
Government
of Ireland - National Plan on Business and Human Rights 2017 - 2020
●
Ministry
of Economic Affairs and Employment of Finland - Guide to socially responsible public procurement
● Nationaal
Contactpunt OESO-richtlijnen - Publicatie Eerste evaluatie melding Oxfam Novib,
Greenpeace, BankTrack en Milieudefensie vs. ING
●
UK
Parliament - Committees
publish Bill to end exploitation in the gig economy
NGO and Law Firm
Reports, Papers and Investigations
●
Allen
& Overy LLP’s Human Rights Working Group - The Business and Human Rights Review
●
Amnesty
International - A Criminal Enterprise? Shell’s Involvement in Human Rights
Violations in Nigeria in the 1990s
●
Amnesty
International - Time to Recharge Corporate Action and Inaction to Tackle
Abuses in the Cobalt Supply Chain
●
Business
& Human Rights Resource Centre - What’s changed for Syrian refugees in Turkish garment
supply chains?
●
Institute
for Human Rights and Business - Responsible Recruitment: Remediating Worker-Paid
Recruitment Fees
●
Principles
for Responsible Investment - An Investor Briefing on
the Apparel Industry: Moving the Needle on Responsible Labour Practices
●
Swedwatch
- Swedfund, FMO failed to respect human rights when exiting
bioenergy project
●
UNEP
Inquiry and World Bank Group - Roadmap for a Sustainable Financial System
In court
●
Agence
France-Presse - Peruvian farmer sues German energy giant for contributing
to climate change
●
Araya v Nevsun Resources Ltd - Judgment
●
Dutch NGOs v ING Bank - Case overview
●
FIDH
- Sale of surveillance technology to Egypt: Paris Prosecutor
asked to open a criminal investigation
●
Human Rights Law Centre and Raid vs
G4S - Case overview
● Independent
Workers' Union of Great Britain and RooFoods Limited T/A Deliveroo - Decision on Whether to Accept the Application
●
Kathleen
Harris - Supreme Court ruling removes barrier for year-round ski
resort on sacred First Nation land
●
Kristine
Hirsti - Klimasøksmålet:
Vinner miljøbevegelsen kan bremsen for oljeleting i nord settes på
●
Leigh
Day - Court of Appeal to hear Nigerian villagers’ pollution
claims against Shell
●
teleSUR
- A victory for Ecuador’s Indigenous Peoples: Canada Court
rejects toxic-spilling Chevron’s case
●
Uber v Aslam et al - Judgment
In the news
Environment
●
Kate
Hodal
- 'Absolutely shocking': Niger Delta oil spills linked with
infant deaths
●
Scilla
Alecci - Paradise Papers:
Leaked records reveal offshore companies’ role in forest destruction
Equator
Principles
●
BankTrack
- 'Equator banks, act!' campaign welcomes decision to revise
the Equator Principles
●
EP
Association Annual Meeting 2017 - Outcomes
Labour
●
Amnesty
International - Industry giants fail to tackle child labour allegations in
cobalt battery supply chains
●
Bénédicte Jeannerod - The Louvre Abu Dhabi’s Unlovely Back Story
●
Elizabeth
Segran - The Real Story Behind Those Desperate Notes That Zara
Workers Left In Clothes
●
Sarah
Butler - University support staff launch landmark case over pay and
conditions
Mining
and Minerals
●
Adam
Davidson - How Trump Is Quietly Dismantling the Architecture of
Global Governance
●
Ben
Doherty
and Oliver Zihlmann - The inside story of Glencore's hidden dealings in DRC
●
EITI
- EITI Chair Statement on United States withdrawal from the
EITI
●
EITI
- Mexico embraces oil, gas and mining transparency
●
Hannah Summers - Amnesty seeks
criminal inquiry into Shell over alleged complicity in murder and torture in
Nigeria
Money
laundering
●
Vanessa
Houlder - UK shell companies linked to £80bn money laundering
Sport
●
Amnesty International - FIFA under pressure over handling of World Cup
construction abuse
●
Institute
for Human Rights and Business - Consultation on Grievance Mechanism for Tokyo 2020 Olympic
Games
●
Jane Buchanan - Russian Human Rights Defender Faces Police in Court
●
Minky Worden - Time for FIFA to Act on Human Rights: Russia’s World Cup
2018 Preparations Falling Short of Rights Goal
Swiss
Responsible Business Initiative
●
Initiative
pour des multinationales responsables - La Commission reconnaît la nécessité d’agir et veut un
contre-projet indirect
●
Marc-André
Miserez - Paradise Papers fuel Swiss better business initiative -
for now
●
Michael
Soukup - Exklusive Umfrage: Deutliche Mehrheit für
Konzern-Initiative
Taxation
●
Nick
Hopkins and Simon Bowers - Revealed: how Nike stays one step ahead of the taxman
●
United
Nations Human Rights - Paradise Papers: States must act against “abusive” tax
conduct of corporations - UN human rights experts
Trade
●
Rob
Howse - The "Ardern Clause" in TPP: A Novel Approach to
Curbing Investment-State Dispute Settlement
United
Nations
●
ECCJ
- UN treaty process on business and human rights moving into
a new phase
●
United
Nations General Assembly - Situation of human rights defenders
Speeches, Videos
and Interviews
●
Institute
for Human Rights and Business - Heads of OHCHR, ILO, and IOC open the Sporting Chance
Forum
Academic Materials
● Anna
Grear and Burns Weston - The Betrayal of Human Rights and the Urgency of Universal
Corporate Accountability: Reflections on a Post-Kiobel Lawscape
●
Business
and Human Rights Journal - Surya Deva, Anita Ramasastry, Michael Santoro and Florian
Wettstein
●
Christine Overdevest and Jonathan Zeitlin -
Experimentalism
in transnational forest governance: Implementing European Union Forest Law
Enforcement, Governance and Trade (FLEGT) Voluntary Partnership Agreements in
Indonesia and Ghana
●
Jonathan
Bonnitcha and Robert McCorquodale - The Concept of ‘Due Diligence’ in the UN Guiding
Principles on Business and Human Rights
●
Jonathan
Bonnitcha and Robert McCorquodale - The Concept of ‘Due Diligence’ in the UN Guiding
Principles on Business and Human Rights: A Rejoinder to John Gerard Ruggie and
John F. Sherman, III
●
John
Ruggie and John Sherman - The Concept of ‘Due Diligence’ in the UN Guiding
Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and
Robert McCorquodale
● Karin
Buhmann - Neglecting the Proactive Aspect of Human Rights Due
Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive
as a Pillar One Avenue for Promoting Pillar Two Action
●
Louise
Obara - ‘What Does This Mean?’: How UK Companies Make Sense of
Human Rights
●
Lukasz Czerwinski - A Jedi Approach for Companies to Manage Grievances and
Land-Related Risk
●
Milan
Babic, Jan Fichtner and Eelke Heemskerk - States versus Corporations: Rethinking the Power of
Business in International Politics
●
Nicolas
Bueno - Corporate Liability for Violations of the Right to Just
Conditions of Work in Extraterritorial Operations
●
Shane
Darcy - ‘The Elephant in the Room’: Corporate Tax Avoidance &
Business and Human Rights
● Stéphane
Brabant and Elsa Savourey - France’s Corporate Duty of Vigilance Law: A Closer Look at
the Penalties Faced by Companies
● NYU
Stern BHR - Harmful Content: The Role of Internet Platform Companies
in Fighting Terrorist Incitement and Politically Motivated Disinformation
Blogs
Asser
Institute Doing Business Right Blog
●
Catherine
Dunmore - Doing Business Right – Monthly Report – October 2017
● Catherine
Dunmore - Lungowe v Vedanta and the loi relative au devoir de
vigilance: Reassessing parent company liability for human rights violations
●
Daniel
Iglesias Márquez - The EU Conflict Minerals Regulation: Challenges for
Achieving Mineral Supply Chain Due Diligence
●
Elisa
Chiaro - Regulating the Gig Economy: A Workers’ Rights Perspective
●
2
November 2017 - “Give banks and companies clear guidelines on their human
rights responsibilities”
Others
●
Atul Shah - KPMG:
Professional Chameleons Or Independent Public Auditors And Regulators?
●
Beate Sjåfjell - Doing By Suing:
The International Trend of Climate Lawsuits
●
Christopher
Burkett and Kevin Coon - Door Still Open?
Canada As Safe Harbour For Multinational Human Rights Litigation
● Claes Cronstedt, Jan Eijsbouts,
Adrienne Margolis, Steven Ratner, Martijn Scheltema, Robert Thompson - International
Arbitration of Business and Human Rights: A Step Forward
●
Daniel Aguirre - Obligations to
respect and protect human rights are meaningless without access to remedy in
states where the rule of law is weak: The example of Myanmar
●
Gabriela Quijano and Elodie Aba - Reclaiming the
forgotten pillar, and the law as an agent of change
● Global
Witness - Chinese industry group launches guidelines for sustainable
rubber - includes sections on land, labour & indigenous peoples rights
● Larry
Catá Backer - Reflections Day 1 ("What is the continuing relevance
of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business
and Human Rights (27-29 November 2017)
●
Roel
Nieuwenkamp - “I don’t care if
it’s legal, it’s wrong”: Panama Papers show taxation is a core corporate
responsibility issue
●
Roper Cleland - Do local grievance mechanisms work?
●
Ryan
Brightwell - Steps forward and
steps back on the road to access to remedy in the banking sector
●
Surya Deva - Access to Effective Remedy: Taking Human Rights and Rights
Holders Seriously
Upcoming Events
Asser
Institute
●
8-12
January 2018 - Winter Academy - Doing Business Right: Corporate social
responsibility in transnational law and practice, Den Haag, Netherlands