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 an intern with the Doing Business Right project. 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

CHRB

On 12 November 2018, the Corporate Human Rights Benchmark released the results of its 2018 ranking of 101 companies operating in the apparel, agricultural products and extractives industries. The results show that implementation of the UN Guiding Principles on Business and Human Rights in these sectors is still weak (following the 2017 results) with the average overall score for 2018 being 27% (an increase of 9 percentage points from last year), demonstrating a lack of respect for human rights. The Report identifies that due diligence is a key weakness of the companies that were reviewed, with 40% of companies scoring no points with respect to the due diligence indicator. Other issues identified were the lack of a strong commitment to ensuring that there are ‘living wages’ paid to those working in company operations and supply chains and the failure to meet expectations with respect to preventing child labour in supply chains. Read the 2018 Key Findings Report here.

Australian MSA passes both houses of Parliament

On 29 November 2018, the Modern Slavery Bill 2018 (Cth) passed both houses of the Australian Parliament. Once enacted, the Act will require Australian entities and entities carrying on a business in Australia that have a consolidated revenue of at least $100 million to prepare a Modern Slavery Statement covering mandatory criteria. Criteria that such entities will have to report on include the risks of modern slavery practices in their operations and supply chains and the actions they take to assess and address those risks, including due diligence and remediation processes. It is likely that the Act will come into effect on 1 January 2019 and accordingly the first Modern Slavery Statements will be due by 1 January 2021.

UN and International organisations publications and statements

• FIFA, Second Report by the FIFA Human Rights Advisory Board: Including the Board’s Recommendations and FIFA’s Responses
• UN Human Rights Special Procedures – Summary of the report of the Working Group on Business and Human Rights to the General Assembly, October 2018 (A/73/163): Corporate human rights due diligence: emerging practices, challenges and ways forward

NGO and Law Firm publications and statements

• Business & Human Rights Resource Centre – FTSE 100 & the UK Modern Slavery Act: From Disclosure to Action
• Danish Institute of Human Rights – Women in Business and Human Rights
• European Coalition of Justice – Parliamentarians from across Europe want to move on human rights due diligence legislation

In Court

• Amnesty International – South Africa: Ruling against mining company a victory for marginalized communities across the country
• Courthouse News Service – Climate Change Litigation Turns Up the Heat on Corporations
• Independent – North Korean labourer sues European company for ‘profiting from his slavery’
• Mali & Guardian – High Court rules in favour of Xolobeni community in historic mining rights case
• Namati – Court Orders Oil Palm Company to Return Land and Pay Arrears of Rent to Landowners in Sierra Leone
• Reuters – In Ecuador, landmark court cases challenge mining projects

In the News 

• Africa Focus – Africa Mining Vision
• Business Insider UK – They treat us like disposable parts': An Amazon warehouse worker is waging war on working conditions in a new anonymous newspaper column
• Climate Liability News – French Communities Demand Climate Action by Oil Giant Total
• Facebook Newsroom – An Independent Assessment of the Human Rights Impact of Facebook in Myanmar
• Global Legal Action Network – Complaint filed against Irish oil company for business dealings in annexed Western Sahara
• Global Witness – What the EU is doing to make our money more ethical and why you should care
• Human Rights Watch – Airbnb Stops Rentals on Stolen Land: Daily Brief
• John Ruggie – Facebook in the Rest of the World
• Mining Technology – Diamond Industry Urged to Improve Human Rights Record
• MotherJones – Your Halloween Candy’s Hidden Ingredient: Child Slave Labor
• OZY – Tanzanian Farmers Crack the Code for Fighting Land Grab
• Place – Hi-tech mapping threatens land rights across the 'digital divide' - experts
• Reuters – UK's Tetley reveals tea suppliers in push for slave-free sourcing
• Rights and Accountability in Development – Barrick and Randgold Warned About Rights Abuses Ahead of Merger
• Rights and Accountability in Development – Glencore’s Growing Legal Troubles With Katanga Mining
• The Guardian – Bangladesh to eject safety inspectors brought in after Rana Plaza disaster
• Thomson Reuters Foundation – Most big companies failing U.N. human rights test, ranking shows

Speeches, Videos, Podcasts and Interviews

• Debbie Stothard at EU Parliament DROI Committee Meeting
• Letícia Oliveira, 'It's a long fight': the communities devastated by Brazil's dam collapse

Academic Materials

• Carolijn Terwindt, Shaelyn Morrison and Christian Schliemann, Health Rights Impacts by Agrochemical Business: Legally Challenging the “Myth of Safe Use”, Utrecht Journal of International and European Law
• Claire Methven O'Brien, Experimentalist Global Governance and the case for a Framework Convention based on the UN Guiding Principles on Business and Human Rights (in book: Experimentalist Global Governance and the case for a Framework Convention based on the UN Guiding Principles on Business and Human Rights)
• Geetanjali Ganguly, Joana Setzer and Veerle Heyvaert, If at First You Don’t Succeed: Suing Corporations for Climate Change, Oxford Journal of Legal Studies

Blogs           

Asser Institute Doing Business Right Blog

• Alexandru Tofan – Transnational Access to Justice in Araya v Nevsun: Overcoming Procedural Barriers to Remedy in Business and Human Rights Cases
• Imke B.L.H. van Gardingen – Accountability for the exploitation of North Korean workers in the Shipbuilding Industry through Dutch Criminal Law
• Shamistha Selvaratnam – Global Modern Slavery Developments (Part I): A Critical Review of the UK Modern Slavery Act

Others

• Clare Patton, Ciara Hackett and Ciarán O'Kelly – Rang Tan, Iceland and Greenpeace: How a cartoon orangutan opened up the debate on the politics of charity advertising
• Emily Kenway – Globalising justice in supply chains: extraterritorial responsibility
• Gabriela Kletzel, Andrés López Cabello and Daniel Cerqueira – A Toothless Tool? First impressions on the Draft Optional Protocol to the Legally Binding Instrument on Business and Human Rights
• Katerina Yiannibas – International Arbitration & the Remedy Gap for Victims of Business-Related Human Rights Abuses
• Klentiana Mahmutaj – Observations on the Zero Draft - A Detailed Proposal for a System of Arbitration
• Louise Eldridge – Hope for reform, and remedy? External reviewers visit the UK NCP
• Louise Eldridge – Mandatory human rights due diligence is the direction of travel
• Marieke Louis – The Social Diplomacy of Multinational Corporations
• Michael A. Santoro and Robert Shanklin – Business Responsibility for Freedom of Expression: Should Google Re-Enter the China Internet Search Market?
• Miriam Ingeson and Alexandra Lily Kather – The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad
• Phil Bloomer – New human rights ranking shows most firms have barely left the starting line
• Priya Pillai – Human rights impact assessment in Myanmar: Facebook’s anodyne report
• Rama Dwivedi – ‘Giving Up Not an Option’: These Women Farmers are Fighting for Social Acceptance, Rights
• Tara Van Ho – Academics, Women Academics and the 2018 #bizhumanrights Forum: Part 1, Part 2 and Part 3
• Tareq Shrourou – Airbnb settlements disengagement decision shows the way forward for companies in the emerging context of business and human rights compliance
• Virginie Rouas – Access to justice and the new French Act on the duty of care: main opportunities and challenges for plaintiffs

Call for Papers and Abstracts

• Call for Papers – Innovate Rights: New Thinking on Business and Human Rights –University of New South Wales (due 18 January 2019)

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

Upcoming Events

• 6 December 2018 – The History and Future of the Business and Human Rights Movement – Oxford University, England
• 28 January – 1 February 2019 – Doing Business Right Winter Academy - The UN Guiding Principles on Business and Human Rights: From theory to practice – Asser Institute, The Hague
• 13-14 February 2019 – 2019 OECD Forum on Due Diligence Guidance in the Garment and Footwear Sector – Paris
• 11-12 April 2019 – Business & Human Rights Young Researchers Summit – St. Gallen, Switzerland

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.

Background

At the United Nations Forum on Business and Human Rights from 27-29 November 2017 in Geneva, discussions focused on the central theme of Realizing Access to Effective Remedy. With an increasing focus on this third pillar of the United Nations Guiding Principles on Business and Human Rights, a working group of international law, human rights and conflict management specialists (Claes Cronstedt, Jan Eijsbouts, Adrienne Margolis, Steven Ratner, Martijn Scheltema and Robert C. Thompson) has spent several years exploring the use of arbitration to resolve business and human rights disputes. This culminated in the publication on 13 February 2017 of a proposal for International Business and Human Rights Arbitration. On 17 August 2017, a follow-up Questions and Answers document was published by the working group to address the principal questions raised about the proposal during the three-year consultation with stakeholders. Now, a drafting team is being assembled, chaired by Bruno Simma, to prepare a set of rules designed specifically for international business and human rights arbitration (the Hague International Business and Human Rights Arbitration Rules) in consultation with a wide range of business and human rights stakeholders. Once drafted, the rules will be offered to the Permanent Court of Arbitration and other international arbitration institutions and could be used in arbitration proceedings managed by parties on an ad hoc basis.

Introduction

Part 1 of this three-part blog series will give an overview introduction to the proposal for international business and human rights arbitration. It will discuss particularly (1) considerations for the drafters of new arbitration rules for business and human rights disputes. Part 2 will focus on the potential advantages of using international arbitration to resolve such disputes, as well as the substantial challenges the proposal will face in practice. Part 3 will then provide a case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process.

The proposal for International Business and Human Rights Arbitration

As the working group explains, business and human rights disputes, generally between multinational business enterprises and the victims of human rights abuse, “often occur in regions where official national courts are dysfunctional, corrupt, politically influenced or simply unqualified”. Accordingly, and as discussed further in Part 2, the concept of using the international mechanism of arbitration has attracted great attention as a potentially promising means by which to give victims an effective access to remedy. Indeed, even where capable national court systems are available, the potential for a speedier dispute resolution procedure and globally enforceable awards could render arbitration a preferred means for resolving business and human rights violations

Drafting business and human rights arbitration rules

The proposal does not call for the establishment of a new arbitration institution, but rather acknowledges that human rights disputes are fundamentally different from investor-state or commercial arbitration and that accordingly existing international arbitration rules are poorly suited to the special requirements of human rights cases. As outlined further below, current arbitrators may lack the necessary expertise to handle business and human rights violations. Moreover, and as developed further in Part 2, an inequality of arms between disputing parties is a much greater possibility between corporations and individual victims, versus two private enterprises or an investor and state. Meanwhile, confidentiality is a key factor behind the success of international commercial arbitration, but when adjudicating on disputes involving human rights violations of public concern the standard arbitration provisions dictating party privacy and transparency must be rethought. As a result, the process has begun to draft a new set of rules designed specifically for international business and human rights arbitration. The proposal is that these arbitration rules could be applied in a number of contexts:

• The parties could select the rules to use in an arbitration conducted entirely by themselves, without assistance from an arbitration institution.

• The parties could select the rules to use in an arbitration administered with the assistance of an arbitration institution.

• The parties could select an arbitration institution which has adopted the new business and human rights rules as the rules to govern proceedings conducted under its own auspices.

Identified areas which necessitate the drafting team’s focus include adaptations accounting for (a) the likely parties to business and human rights arbitrations, and (b) the constitution of business and human rights expert arbitration panels.

1. Parties to business and human rights arbitrations

In order to be fit for purpose, arbitration rules for business and human rights must suit the needs of potential parties to disputes. According to the proposal, arbitration could be adapted for use by victims of human rights violations who wish to bring claims against businesses. Consideration will need to be given by the drafters as to how to accommodate claims often by multiple victims, the mechanism to permit joinder of such claims and protections will need to be afforded to vulnerable victims. The proposal also suggests that arbitration could be used to resolve human rights related disputes between commercial parties, for instance where one party neglects contractually-imposed human rights obligations.

2. Business and human rights expert arbitration panels

Any new arbitration rules will need to provide for the appointment of expert arbitration panels to hear and decide business and human rights disputes. All parties to a dispute will need access to a wide variety of arbitrators with specific practical or academic expertise in business and human rights. However, human rights non-governmental organisations have told the working group that, in their view, “commercial arbitrators have neither the expertise nor the sensitivity to human rights matters to enable victims to feel comfortable coming before an arbitral tribunal”.

Accordingly, the working group recommends that arbitration institutions choosing to adopt the new rules create special rosters of human rights arbitrators, in a similar vein to the Permanent Court of Arbitration’s Panels of Arbitrators and Experts for Environmental Disputes. This may mean that existing arbitrators who wish to serve on business and human rights cases will be required to broaden their fields of knowledge and skill sets, whilst lawyers and scholars now working on business and human rights issues may require specialist training in acting as an arbitrator. Additionally, the proposal refers to the possibility of parties appointing qualified individuals to a business and human rights panel, even if they are not listed on an arbitration institution’s formal roster.

Conclusions

At least in theory, international arbitration has the potential to give victims of business and human rights violations access to effective remedy. Yet, the proposal clearly recognises the deficiencies in adopting existing procedural arbitration rules for the purposes of resolving business and human rights disputes and, accordingly, we now see tailored business and human rights arbitration rules being developed. However, care must be taken by the drafting team to ensure that these rules are fit for purpose. The drafters must incorporate not only the positive aspects of international arbitration but also tackle the challenges in practice of applying this alternate means of dispute resolution. These considerations will be discussed further in Part 2 of this blog series.