Doing Business Right Blog

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

BankTrack - New Briefing Paper: How banks contribute to human rights abuses
International Corporate Accountability Roundtable and Due Process of Law Foundation - Extractives and National Action Plans (NAPs) on Business and Human Rights
Principles for Responsible Investment and British Institute of International and Comparative Law - BIICL and PRI Workshop on Human Rights in Private Equity: Information and Summary
The Conference Board Sustainability Center - Sustainability Practices 2017
The Permanent Missions of Azerbaijan, Chile, Denmark, Ecuador, Fiji, Luxembourg, Portugal, Rwanda, Sierra Leone, Thailand and Uruguay, with the support of the Danish Institute for Human Rights and the Universal Rights Group - Human Rights and the Sustainable Development Goals – Pursuing Synergies

In court

Court of Justice of the European Union - Judgment in Case C-434/15 Asociación Profesional Elite Taxi v Uber Systems Spain SL
Egbema Voice of Freedom et al vs Eni - Case overview
FD - Shell wordt aangeklaagd voor corruptie in Nigeria
Global Witness - Judge Orders Biggest Corporate Bribery Trial in History against Shell, Eni, CEO and Executives
IndustriALL - Settlement reached with global fashion brand in Bangladesh Accord arbitration
Leigh Day - Legal action against London-based shipping company following life-changing injuries

In the news

Finance

Claire Provost - Farmers sue World Bank lending arm over alleged violence in Honduras

Labour

Karin Finkenzeller - Wer Pech hat, muss hungrig nähen
Mark Wijne - Overheid, dwing bedrijven actie te ondernemen tegen kinderarbeid
Tonys Chocolonely - Help mee en steun de wet 'zorgplicht kinderarbeid'!

Mining and Minerals

Rajesh Bhayani - India to have gold sourcing standards for refiners

Swiss Responsible Business Initiative

Konzern-verantwortungs-initiative - Economiesuisse torpediert konstruktiven Dialog zwischen Konzernen und NGOs

Technology

Sam Levin - Google to hire thousands of moderators after outcry over YouTube abuse videos

Terrorism

Reuters - France places three under formal investigation in Lafarge Syria payments case

Academic Materials

Anil Yilmaz Vastardis and Rachel Chambers - Overcoming the Corporate Veil Challenge: Could Investment Law Inspire the Proposed Business and Human Rights Treaty?
Kendyl Salcito and Mark Wielga - What does Human Rights Due Diligence for Business Relationships Really Look Like on the Ground?
Olga Martin-Ortega and Claire Methven O'Brien - Advancing Respect for Labour Rights Globally through Public Procurement
The University of Manchester - PhD Scholarship: “How Multinationals Manage Human Rights”

Blogs

Asser Institute Doing Business Right Blog

Catherine Dunmore - Doing Business Right – Monthly Report – November 2017
Catherine Dunmore - International Arbitration of Business and Human Rights Disputes: Part 1 - Introducing the proposal
Catherine Dunmore - International Arbitration of Business and Human Rights Disputes: Part 2 - Advantages and challenges
Catherine Dunmore - International Arbitration of Business and Human Rights Disputes: Part 3 - Case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process

Others

Dieneke de Vos - Corporate Criminal Accountability for International Crimes
Frauke Renz - Quo Vadis PMSC?
Herbert Smith Freehills LLP - Business and Human Rights: Key 2017 developments and the road ahead
Julianne Hughes-Jennett, Peter Hood and Marie Davoise - Switzerland: The next frontier for mandatory human rights due diligence?
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)
Larry Catá Backer - Reflections Day 2 ("What is to be Done?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)
Larry Catá Backer - Reflections Day 3 ("'Connecting the dots' and 'calls for action'" From Estates General to Trade Fair and Back Again): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)
Larry Catá Backer - Final Reflections ("Suggestions for Moving Forward to the 7th UN Forum"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)
Larry Catá Backer - Some Thoughts on Thomas Singer, Report--Sustainability Practices 2017 (Conference Board Dec. 2017)
Mirko Sossai - Combatting the legal side effects of privatized war
UN Working Group on BHR - The National Contact Point (NCP) System - Aligning NCP Processes with the UN Guiding Principles on Business and Human Rights

Upcoming Events

Asser Institute

8-12 January 2018 - Winter Academy - Doing Business Right: Corporate social responsibility in transnational law and practice, Den Haag, Netherlands

Editor's note: This report compiles all relevant news, events and materials on transnational business regulation 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

United Nations Treaty Negotiations: Debating a Treaty on business and human rights

The Third Session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights ran from 23-27 October 2017 at the United Nations in Geneva. The session saw substantive discussions between State delegates and civil society on the elements of a future Treaty on business and human rights. Topics of debate included extraterritoriality, provisions on the supremacy of human rights over trade and investment agreements, the Treaty’s scope in terms of companies covered, international cooperation, monitoring and implementation mechanisms. The process is set to continue in 2018, with the Chair expected to present a proposal for a draft Treaty ahead of the IV session. Meanwhile, over forty civil society organisations addressed an open letter to States and the EU calling on decision-makers to ensure the continuity of the process. The organisations call on governments and the European Union to explicitly commit to “prepare detailed reactions to the elements for a draft legally binding instrument, in preparation for constructive engagement in the ongoing process towards a draft text and the next negotiation session of the OEIGWG”.

Lungowe v Vedanta: Court of Appeal confirms jurisdiction against English domiciled parent company

On 13 October 2017, the Court of Appeal in London handed down its judgment in Dominic Liswaniso Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528. The case is brought by 1,826 villagers from the Chingola region of Zambia against the London Stock Exchange listed metals and mining company Vedanta Resources Plc and its Zambian subsidiary Konkola Copper Mines Plc. The villagers claim personal injury, damage to property and loss of income, amenity and enjoyment of land, due to alleged pollution and environmental damage caused by discharges from the Nchanga copper mine for over a decade. The judgment runs contrary to the historical legal doctrine that English domiciled parent companies are protected from liability for their foreign subsidiaries’ actions. The decision clarifies the duty of care standard a parent company owes when operating via a subsidiary and opens the gates to other English domiciled companies and their subsidiaries potentially being held accountable for any human rights abuses.

Bangladesh Accord Arbitrations: Decision on Admissibility of Claims and Confidentiality

On 16 October 2017, the Permanent Court of Arbitration issued a press release on behalf of the Tribunal in two arbitrations. The arbitrations arose under the Accord on Fire and Building Safety in Bangladesh signed on 15 May 2013. The Accord is an agreement between global brands and trade unions created in the aftermath of the Rana Plaza building collapse, to establish a fire and building safety programme for workers in the textile industry in Bangladesh. In 2016, IndustriALL Global Union and UNI Global Union commenced arbitrations under the Accord and the UNCITRAL Rules of Arbitration 2010 against two global fashion brands. The Tribunal, composed of Professor Hans Petter Graver, Mr Graham Dunning QC and Mr Donald Francis Donovan (presiding), was formally constituted on 3 February 2017. On 4 September 2017, the Tribunal issued a second Procedural Order, finding the claims to be admissible under Article 5 of the Accord and issuing directions on confidentiality and transparency. In its deliberations, the Tribunal accounted for the interest in the Accord from the public, numerous signatories and other stakeholders, but also the need to protect the business information and reputational interests of the brand companies. The arbitrations will now proceed to a merits phase, with hearings scheduled for the first half of 2018.

Company Reports and Press Releases