This autumn, two oil industry executives may be indicted in Sweden for aiding and abetting international crimes in Sudan. Furthermore, the public prosecutor will also likely seek forfeiture of $400 million from their company, Lundin Petroleum, reflecting the benefits derived from its Sudanese operations. The case follows the 2018 French indictment of LafargeHolcim for alleged crimes committed in Syria, showing that corporate liability for international crimes is gaining traction, before European courts at least.

This event aims to discuss the Lundin case, which has the potential of becoming a landmark trial because of the novelty and complexity of the legal issues that the court will have to decide. In particular, with regard to the assessment of the individual criminal liability of the executives of Lundin, the determination of the applicable standards of proof, the question whether a lack of due diligence is sufficient for a finding of guilt, and the limits and overlap of individual criminal liability of corporate directors on the one hand and corporate criminal liability of organisations on the other.

The event will feature three speakers, who will be presenting the various dimensions of the case and will put it into the more general context of the current legal developments with regard to criminal liability of corporations (and their executives) for human rights violations:

• Egbert Wesselink will provide an introduction to Sudan’s oil war, describe Lundin’s role in it, and examine the human rights responsibilities of the company and its shareholders.
• Dr. Mark Taylor will discuss how the Lundin case sits in global developments regarding the criminal liability of corporations for human rights abuses in the context of conflicts.
• Miriam Ingeson will give a Swedish perspective to the legal framework of the case and analyse the legal issues that it raises at the intersection between national and international law.

The speakers:

• Egbert Wesselink serves as Senior Advisor in PAX, the Dutch peace movement, where he is responsible for the programme on Natural Resources, Conflict and Human Rights, that focusses on the impact of international enterprises on the rights and interests of communities, notably in Sudan, South Sudan, DRC and Colombia. He represents PAX in several multi-stakeholder initiatives, including the Voluntary Principles on Security and Human Rights in an effort to increase the impact of emerging international guidelines, and advises various enterprises.
• Dr. Mark Taylor is a Postdoctoral Fellow, Department of Private Law, University of Oslo and presently a Visiting Fellow at the Amsterdam Center for International Law, University of Amsterdam. Mark writes on legal and policy frameworks applicable to responsible business and will publish the book “War Economies and International Law: Regulating the Economic Activity of Armed Conflict” (based on his PhD thesis) with Cambridge University Press. Mark is an advisor to various initiatives in the field of responsible business and is a member of the Norwegian Ethics Information Commission (2018-2019), a government commission which is considering a proposed law on human rights information in the global value chains of Norwegian business.
• Miriam Ingeson is a PhD candidate at Uppsala University, Sweden.  Her research project explores corporate criminal liability in international criminal law, and the intersection of domestic criminal law and public international law. She has previously held positions with the Swedish Prosecution Authority, the Folke Bernadotte Academy and the Swedish Ministry of Justice.

The moderator:

• Dr. Antoine Duval is Senior Researcher at the Asser Institute and the coordinator of the Doing Business Right project.

For some background material on the case and its wider context, see www.unpaiddebt.org & www.lundinhistoryinsudan.com.

More information and registration Here!

On 27 February 2019, in a 7-1 decision, the US Supreme Court made an end to the absolute immunity from suit that international organisations (IOs) had consistently enjoyed in US courts. The decision realigns the immunity regime for IOs with that for foreign states, which leaves the opportunity to sue organisations such as the International Finance Corporation (IFC) when they engage in commercial activities. In a flare of enthusiasm among academics and (human rights) activists, the decision was immediately granted a landmark​ status and marked as a turning point in the long history of impunity for social, ecological and human harm caused by the activities of IOs. This Doing Business Right Talk ​will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of IOs, and international financial institutions in particular. The most immediate effect, in that sense, might not be located on the avenue of adjudication, but in the various accountability mechanisms that have been created within IOs themselves.

Dimitri van den Meerssche is a researcher in the Dispute Settlement and Adjudication strand at the T.M.C. Asser Instituut. His research reflects on the law of international organisations, international legal practices and technologies of global governance. This work is inspired by insights from science and technology studies, performativity theory and actor-network theory. Dimitri is currently finalising his doctoral dissertation at the European University Institute, which he expects to defend in winter 2019. His dissertation is entitled “The World Bank’s Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In the context of this dissertation, Dimitri has worked for three months at the World Bank Legal Vice-Presidency and spent one semester as visiting doctoral researcher at the London School of Economics.

When: Wednesday 24 April 2019 at 16:00

Where: Asser Institute in The Hague

Register Here

Editor’s note: Abdurrahman is currently working for Doing Business Right project at the Asser Institute as an intern. He received his LL.M. International and European Law from Tilburg University and currently he is a Research Master student at the same university.

After the collapse of Rana Plaza which claimed the lives of 1,138 mostly garment workers and left thousands more injured, the global outcry for improved worker safety in the ready-made garment (RMG) industry of Bangladesh caused by global public interest, media attention and harrowing stories of workers has led to the emergence of various international and national initiatives to address the issue. Three of these initiatives are the Accord on Fire and Building Safety in Bangladesh (the Accord), the Alliance for Bangladesh Worker Safety (the Alliance) and the National Tripartite Plan of Action on Fire Safety and Structural Integrity in the Garment Sector of Bangladesh (the National Initiative).

Although on the surface, these initiatives appear to be quite similar and have the primary objective of improving worker safety in the RMG sector of Bangladesh through inspections and identification of fire, structural and electrical remediations for garment factories, they show considerable differences when looked more carefully. These differences influence the outcomes of the three initiatives on factory remediation for fire, structural and electrical safety in the RMG sector in Bangladesh. In this blog, after a brief description of each initiative (for a broader description, see here), I will discuss the effectiveness of the remediation processes introduced by the Accord, the Alliance and the National Tripartite Plan.

The remediation initiatives in the Bangladeshi RMG sector

The Accord

On 15 May 2013 the Accord, which covers more than 2 million garment workers, was adopted for a period of five years to stop business-as-usual in Bangladesh’s RMG sector. To date, more than 200 apparel brands, retailers and importers from more than 20 countries in Asia, Australia, Europe and North America, along with two global unions and 14 Bangladeshi trade union federations have signed the Accord. Additionally, four international labour rights NGOs have signed the Accord as international witnesses. A unique feature of the Accord is that its signatories have made binding commitments – that is, they can be brought before arbitral courts for disputes arising from the Accord. It stipulates independent inspections, disclosures of these inspection reports and corrective action plans (CAPs) and commitments by the signatory brands to assist the financing of RMG factory remediation. Under the Accord, as of 2018, more than 2,000 factories have been inspected for fire, electrical and structural issues and more than 130,000 issues have been identified in the factory inspections, 83% of which have been verified as fixed. Although the Accord will expire in May 2018. After this date, the Transition Accord, which is signed by 145 brands already (as of 17 April 2018), will replace it for an extendable period of three years. 

The Alliance

Many North American companies refused to sign the Accord due to liability concerns[1] and instead they (currently 29 companies, with all but one from North America) formed the Alliance in July 2013 to be active for a period of five years. The members do not have legally binding commitments under the Alliance and are just obliged to pay the annual membership fee. The Alliance also provides for independent inspections and the disclosure of inspection reports, the preparation of CAPs and the suspension of factories if they fail to meet the safety standards of the Alliance. Under the Alliance, inspections have been carried out in more than 900 factories and 85% of all remediation proposed in the CAPs has been completed.[2] It does not seem that the Alliance will be extended after 2018, but there have been efforts to create a local organization that could build on the legacy of the Alliance and would be tasked with monitoring new and existing factories according to the standards of the Alliance concerning fire, electrical and building safety.[3]

The National Initiative

After the Tazreen fire, the Bangladeshi Government, in collaboration with employers and workers organizations started to develop an action plan aimed at ensuring fire safety in garment factories. Although the plan was formally adopted on 24 March 2013, it was reassessed after the collapse of Rana Plaza and the structural component was included in the plan. On 25 July 2013 the revised version was adopted. The plan consists of legislative, administrative and practical activities to promote fire safety and structural integrity in Bangladesh’s RMG sector. This government initiative, supported and coordinated by the ILO, inspected approximately 1,500 factories not covered by the Accord or the Alliance. However, the reports of these inspections are not publicly available.

The Assessment

As regards the remediation process and ensuring worker safety in the RMG sector in Bangladesh, each of these initiatives has relied on different levers of influence and displays distinct results regarding the remediation of factories. These differences can be explained on various grounds but here the focus will be on their structures, levels of transparency and enforcement processes.

Governance Structure

The Accord and the Alliance differ fundamentally in their structures, and thus also in their outcomes. This distinction is made clear by Donaghey and Reinecke,[4] who explain the difference between a traditional Corporate Social Responsibility (CSR) based approach and what they refer to as industrial democracy.[5]  Whereas the Alliance qualifies as a traditional CSR-based approach since it is a voluntary transnational industry self—regulation mechanism, the Accord is based on principles of industrial democracy and involves workers in its design and implementation. Traces of this distinction can be found in the governance structures of the both initiatives. The Accord’s governance steering committee consists of three brands and three unions, meaning that workers are represented. Moreover, four international labour rights NGOs are signatories of the Accord as witnesses.[6] However, as regards the Alliance, the board of directors consists of four brands, three outside experts and an independent chair, and workers do not get to participate directly in its governance.[7] As Donaghey and Reinecke point out, these governance structures indicate that while the Accord employs a pluralist approach, the Alliance is tilted towards corporate-driven governance.[8]

These governance structures may have an impact on the remediation works. The Alliance Agreement stipulates that the Committee of Experts, which is tasked with factory inspections, “operate under the oversight of the Board of Directors and the Executive Director.”[9] This means that inspections are not totally independent, and brands retain the control over factory inspections. This can be considered illustrative of the CSR-based approach of the Alliance. It resembles a fox-guarding-henhouse-like situation which threatens the legitimacy of the inspection process. Although the Alliance claims that almost all of the identified remediation processes have been completed, the governance structure and the power of the board of directors on the remediation process may lead to scepticism around whether the reality on the ground concerning remediation matches the Alliance's claims.[10] However, if the composition of the board were more homogenous (including members from brands and worker representatives), this might enhance the credibility of the inspections.

Transparency

In terms of the transparency and publication of the relevant information on the ongoing remediation processes, these three initiatives adopt different approaches. Firstly, access to information regarding remediation in the factories under the National Initiative is extremely difficult to obtain. The Department of Inspection for Factories and Establishments (DIFE) of Bangladesh is the local organization tasked with inspections and monitoring remediations. However, although the organization completed its initial inspections years ago, it did not publish the inspection reports, CAPs or any updates about the progress of factory remediation. It is reported that about 31% of the factories under the National Initiative have completely failed to complete remediation processes and 36% have made progress of less than 30% towards full remediation. Yet, the lack of publicly available information makes it nearly impossible to verify or falsify these reports.

Similar, though milder, concerns can be expressed about the Alliance. The Alliance publishes the inspection reports, indicating fire, electrical and structural issues, and CAPs for each inspected factory. However, concerning the status of the ongoing remediations and specifically mandated renovations, no updates have been made public and the only information the Alliance distributes is a general update, stating that the factory is “On Track”, “Needs Intervention” or is “Critical”. At this point, one might question what exactly these designations mean and tell us about the status of the remediation process. Some NGOs point out that these designations are not always accurate and can lead to mislabelling of the remediation process in some factories.[11] They rightly claim that more detailed disclosures on the status of remediation would incentivize the brands to accelerate the process and help improving the working conditions in the RMG sector.[12]

The Accord attaches great importance to transparency and relevant provisions can be found in both the 2013[13] and 2018[14] Accords. Along with the inspection reports and CAPs for each factory, the Accord also makes the status of each prescribed remediation for every factory public and only then labels the factory as “On Track” or “Behind Schedule”. Moreover, it shows the percentage of completed remediation processes for each factory and issues detailed quarterly aggregate reports. The Accord’s commitment to transparency makes it significantly easier to access information on the remediation process compared to the Alliance and the National Initiative and to observe its impacts on the ground.

Binding Enforcement

Another difference among these initiatives which affects the remediation process concerns the enforceability of the agreements. The National Initiative is not a contract in the first place. It is an action plan containing legislative, administrative and practical measures to address the issue of worker safety. Although it identifies bodies tasked with particular missions and deadlines, there are no accountability mechanisms to ensure that the deadlines are met in the plan. Therefore, the National Initiative can hardly be considered as legally binding. Indeed, Kahn and Wichterich have found that many of the commitments in the action plans have not been realised, including commitments relating to factory remediation.[15] Similarly, the Alliance Agreement does not require its signatories to give binding commitments, but requires only the payment of membership fees. The members of the Alliance are not obliged to demand that their suppliers complete all remediation steps. This characteristic of the Alliance stems also from its traditional voluntary CSR-based approach, as emphasized by Donaghey and Reinecke.

On the other hand, the Accord members engage in binding commitments such as ensuring that their suppliers accept inspections, implement remediation and respect worker rights.[16] Failure to meet these commitments can result in the initiation of the complaint procedure which can lead to a final and binding arbitration process.[17] In two instances, such binding arbitration procedures have already resulted in settlements with global unions in which brands are accepted to pay a sum of money. An important commitment given by the Accord brands regarding factory remediation is that they have to ensure that substantial financial assistance is available for the funding of remediation in the factories they supply from, if it is needed.[18] This is a distinctive feature of the Accord which cannot be found in the Alliance or the National Initiative. Indeed, the ambiguities about the remediation financing in the factories under the National Initiative are stressed by Khan and Wichterich in their working paper.[19] These ambiguities can be a cause for the low levels of remediation completion in the factories under the National Initiative. Thus, it is fair to say that the binding commitments given by the Accord signatory brands have a significant positive impact on the remediation process.

Conclusion

Since the Rana Plaza disaster, there have been many local and transnational initiatives to address labour rights issues in the RMG sector of Bangladesh. Among them, the Accord, the Alliance and the National Initiative have endeavoured to ensure worker safety. Yet, the extent of success that they have each achieved in terms of factory remediation is not the same. Some characteristics of the Accord have put it ahead of its counterparts. The level of transparency of the Accord facilitates the access to information regarding ongoing remediation, while independent inspections and legally enforceable commitments of the brands are powerful drivers of change in the RMG sector of Bangladesh. In turn, key aspects of the Alliance and the National Initiative such as the lack of binding commitments and clear accountability mechanisms in case of non-compliance threaten the effectiveness of both initiatives. Moreover, the Accord illustrates the potential of an inclusive approach in the form of greater industrial democracy in enhancing the enjoyment of the labour rights. The traditional voluntary CSR-based approach, often labelled as ‘hypocrisy’, adopted by the Alliance has had varying and limited impacts in creating an environment in which workers can easily enjoy their rights. The outcomes of the Accord in terms of factory remediation support the need for different approaches outside of the traditional CSR toolbox.

Although the Accord may have had significantly better results in terms of factory remediation, it is by no means flawless. Some of the flaws of the 2013 Accord will be addressed with the Transition Accord such as the expansion of its scope from just the RMG factories to home textiles, fabric and knit accessories and potentially to other related industries. Furthermore, ensuring that adequate funds are available for factory remediation, particularly for more costly remediation processes, is still a pressing problem.[20] Yet, the Accord will continue doing its work at least for a period of three years, and if local bodies are not ready to take up its work by the end of this period, we can expect that it will remain operational even after that.

[1] “U.S. Retailers Offer Plan for Safety at Factories” The New York Times (New York, 10 July 2013).

[2] Alliance for Bangladesh Worker Safety, Annual Report (November 2017), 3.

[3] ibid., 21.

[4] Jimmy Donaghey and Juliane Reinecke, “When Industrial Democracy Meets Corporate Social Responsibility
— A Comparison of the Bangladesh Accord and Alliance as Responses to the Rana Plaza Disaster” (2018)
56(1) British Journal of Industrial Relations 14,

[5] ibid., 15.

[6] ibid., 23.

[7] ibid.

[8] ibid., 24,25.

[9] The Members Agreement of The Alliance for Bangladesh Worker Safety, Article 6

[10] International Labor Rights Forum, Worker Rights Consortium Clean Clothes Campaign, and Maquila Solidarity Network, Dangerous Delays on Worker Safety (2016), 7.

[11] ibid., 8.

[12] ibid., 11.

[13] The 2013 Accord on Fire and Building Safety in Bangladesh, Article 19.

[14] The 2018 Accord on Fire and Building Safety in Bangladesh, Article 14.

[15] Mohd Raisul Islam Khan and Christa Wichterich, Safety and Labour Conditions: The Accord and The National Tripartite Plan of Action for The Garment Industry Of Bangladesh (2015), 27,28.

[16] The 2013 Accord on Fire and Building Safety in Bangladesh, Articles, 12-15.

[17] ibid., Article 5.

[18] ibid., Article 22.

[19] Khan and Wichterich (n 15), 28.

[20] Khan and Wichterich (n 15), 39.