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: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

The Romanian Institute for Human Rights (‘Institutul Român pentru Drepturile Omului’, hereinafter RIHR) was established on 30 January 1991 on the basis of Law No 9/1991. It is an independent public body that has as its main purposes the promotion of human rights education and the monitoring of compliance with human rights in Romania (see Art. 2). The duties of the institute include carrying out research, disseminating information, organising events and conferences for capacity-building and awareness raising, advising the legislative branch on human rights aspects of new enactments, and reporting on compliance with human rights (see Art. 3). The RIHR’s status as a national human rights institution is currently being transferred to the People’s Advocate Institution (see here), which is an ombudsman institution with general jurisdiction. The process for obtaining accreditation from GANHRI is currently in its incipient stages pending the approval by the Senate of Law 382/2018 concerning the amendment of the law governing the People’s Advocate Institution. In view of this development, this article undertakes a forward-looking approach by analysing RIHR’s current efforts on business and human rights as well as any foreseeable changes.

This article analyses two types of actions in order to observe the extent to which the RIHR has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As stated above however, the RIHR lacks a complaints mechanism. For this reason, this article will adopt a forward-looking analysis by looking at the complaint mechanism of the People’s Advocate Institution (PAI) to ascertain whether this new procedure complies with the vision for NHRIs under the UNGPs. As will be shown, the field of business and human rights has not been at the top of the RIHR’s agenda. Worryingly, the forthcoming transfer of NHRI status to PAI may in fact represent a step back in this sense.

The Paris Principles (PP) dictate that national human rights institutions may directly participate in providing access to justice by hearing and considering complaints. While this does not fall in the competences of the RIHR, it is interesting to analyse whether its successor’s complaints mechanism is aligned with the PPs in its current form. According to the current legislative proposal, the PAI would have the authority to decide over complaints alleging any violation of human rights but only to the extent that the respondent is a public authority, including public companies (see Art. 11 (c)). Should it satisfy itself that a right has been breached, it may request the public authority to take compensatory measures and it may award reparation.

Restricting the complaints mechanism’s jurisdiction to cover only public authorities severely limits its usefulness in business and human rights cases. It means that victims of corporate human rights abuses by private companies will not able to enjoy a routinized alternative to instituting legal proceedings. This limited jurisdictional reach also obstructs the fulfilment of the institution’s role as a mediatory or conciliatory body in business and human rights cases. While it is commendable that the PAI may handle cases alleging violations of any human rights, the ratione personae jurisdiction is too limited to foster the achievement of its envisioned purposes under the UNGPs. Extending the scope of the complaints mechanism to cover private persons as offenders would enable its alignment with both the Paris Principles and the UNGPs. It would also in all likeliness lead towards the bettering of its accreditation status under the GANHRI (the RIHR was previously given C-status).

As to indirect participation, the RIHR has only marginally addressed the field of business and human rights in its activities. For instance, in 2014 and 2015, it has conducted research and organised debates based on the UNGPs, the European Strategy for CSR and the Action Plan of the European Network of NHRIs. These debates included talks of a national action plan in which to set out the priorities of the Romanian government in this field. The RIHR has further held separate conferences on business and human rights (such as the one held together with the UNESCO Office for Human Rights, Democracy, Peace and Tolerance) or as part of its annual conferences (see the 2016 conference where business and human rights was treated as a new challenge to the field of human rights). The RIHR is also a founding member of the CLARITY project alongside eleven other national human rights institutions from the EU. This project aims to raise awareness and enhance the general public’s knowledge about their fundamental rights and related enforcement mechanisms. Since March 2018, CLARITY has begun work on a project focusing on access to remedy improvements in business and human rights cases. On the other hand, the activities of the People’s Advocate Institution do not currently encompass the field of business and human rights at all. This means that the sporadic involvement of the Romanian NHRI in the field of business and human rights will in all likelihood diminish in the future.

To conclude, the field of business and human rights has not been at the top of the RIHR’s agenda in its almost thirty years of activity. Nor is this likely to change under the auspices of its successor – the People’s Advocate Institution. The latter institution does not have a mandate to handle human rights complaints against private companies, and the field of business and human rights is not in its sight. This forthcoming transfer of responsibility may therefore, at least in the short run, not be a good news for access to remedy in business and human rights cases in Romania.