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 a contributor to the Doing Business Right project of the Asser Institute. 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.

Soon after the introduction of the UK Modern Slavery Act (UK Act) in 2015, discussions about establishing similar legislation in Australia commenced. In February 2017, the Attorney-General asked the Joint Standing Committee on Foreign Affairs, Defence and Trade (Committee) to commence an inquiry into establishing a Modern Slavery Act in Australia. The terms of reference of the inquiry included, inter alia, considering the ‘prevalence of modern slavery in the domestic and global supply chains of companies, businesses and organisations operating in Australia’ and whether a Modern Slavery Act comparable to the UK Act should be introduced in Australia. The Committee released an interim report in August 2017 and then a final report in December 2017 – both reports supported the idea of developing a Modern Slavery Act in Australia and set out the Committee’s recommendations with respect to the parameters of a corporate reporting requirement. In the meantime, the Australian Government also published a consultation paper and regulation impact statement outlining its proposed reporting requirement for an Australian Modern Slavery Act.

In June this year, the first draft of the Modern Slavery Bill 2018 (Cth) (the Federal Bill) was introduced into the Australian Parliament. It set out a reporting requirement for large Australian entities to submit a statement on risks of modern slavery in their operations and supply chains. The Explanatory Memorandum to the Federal Bill stated that it supports ‘large businesses to identify and address modern slavery risks and to develop and maintain responsible and transparent supply chains. It will drive a ‘race to the top’ as reporting entities compete for market funding and investor and consumer support.’ On 29 November 2018 the Federal Bill passed both houses of the Australian Parliament incorporating amendments made by the Upper House of Parliament. The amendments resulted in the inclusion of a provision giving the Minister power to request explanations from entities that fail to comply with the reporting requirement (discussed in further detail below) and gives the Minister the power to cause an annual report to be prepared providing an overview of compliance by entities and identifying best practice modern slavery reporting. 

This second blog of a series of articles dedicated to the global modern slavery developments provides an overview of the main elements of the Federal Bill and how it compares to the UK Act. It also discusses the Modern Slavery Act 2018 (NSW) (NSW Act), which was introduced by New South Wales (NSW), a State in Australia. The introduction of NSW Act was relatively unexpected given the movement at the Federal level to introduce national legislation addressing modern slavery in the corporate context. Therefore, this blog will discuss the NSW Act’s interplay with the Federal Bill. It will be followed by a final piece on the modern slavery developments in other jurisdictions in the corporate context.

Key Aspects of the Federal Bill

The Federal Bill requires reporting entities with at least $100 million global consolidated revenue to submit an annual modern slavery statement on the risks of modern slavery in their operations and supply chains.

What is ‘modern slavery’?

As stated in the first blog post in this series, while there is no globally agreed definition of ‘modern slavery’ under international law, it does appear that modern slavery is an umbrella term that covers a range of exploitative practices. As summarised by Anti-Slavery International, human exploitation characterised by only one of the following features is classed as ‘modern slavery’: (i) coercion to work through either mental or physical threat; (ii) being owned or controlled by an employer, usually through mental or physical abuse or the threat of abuse; (iii) being dehumanised or treated as a commodity; or (iv) being physically constrained or with limited freedom of movement.

The Federal Bill defines ‘modern slavery’ by reference to certain offences in the Australian Criminal Code, including slavery, servitude, forced labour, trafficking in persons, forced marriage, child trafficking, debt bondage and other slavery-like practices, and certain forms of child labour. Accordingly, the acts caught by the term ‘modern slavery’ under the Federal Bill are broader than the acts caught under the UK Act, which states that the offences of ‘modern slavery’ are slavery, servitude, forced or compulsory labour and human trafficking.

Who is required to report?

The term ‘reporting entity’ is defined as any of the following:

• An Australian entity or an entity carrying on a business in Australia with a consolidated revenue of at least $100 million for the reporting period.
• The Commonwealth.
• A corporate Commonwealth entity or Commonwealth company which has a consolidated revenue of at least $100 million for the reporting period.
• An entity that volunteers to comply with the Federal Bill.

Accordingly, similarly to the UK Act, the Federal Bill applies to an entity regardless of its geographic location, so long as it carries on at least a part of its business in Australia. A body corporate carries on a business in Australia if it, inter alia, has a place of business (i.e. a business address) in Australia.[1] Entities that do not meet the definition of a ‘reporting entity’ can voluntarily produce a Modern Slavery Statement. However, the monetary threshold in the Federal Bill is higher than that in the UK Act and, accordingly, a smaller group of entities will be captured under the Federal Bill. It is anticipated that approximately 3,000 entities will be captured.

What are reporting entities required to report on?

Unlike the UK Act which sets out optional criteria which Modern Slavery Statements may include information about, the Federal Bill sets out mandatory criteria which such Statements must cover, namely: 

a)     the identity of the reporting entity;

b)     a description of the structure, operations and supply chains of the reporting entity;

c)     a description of the risks of modern slavery practices in the operations and supply chains of the reporting entity, and any entities that the reporting entity owns or controls;

d)     a description of the actions taken by the reporting entity and any entity that the reporting entity owns or controls, to assess and address those risks, including due diligence and remediation processes;

e)     a description of how the reporting entity assesses the effectiveness of such actions;

f)      a description of the process of consultation with any entities that the reporting entity owns or controls; and

g)     any other information considered relevant.

Accordingly, the Federal Bill is prescriptive about the content of Modern Slavery Statements and goes beyond the optional criteria in the UK Act by requiring reporting entities to not only report on modern slavery risks in their operations and supply chains, but also on how they assess the effectiveness of the actions they take to address those risks.

Further, the Federal Bill allows for joint statements to be published by a reporting entity on behalf of the reporting entities that it owns or controls. The parent entity must consult with the boards of the relevant subsidiaries when preparing the statement on their behalf.

Who is responsible for reporting?

Similarly to the UK Act, the Board of directors will bear the ultimate responsibility for Modern Slavery Statements with the Federal Bill requiring the Board to approve the statement and a director to sign the statement.

How can published Modern Slavery Statements be accessed?

Unlike the UK Act, the Federal Bill provides for a Modern Slavery Statements Register to be established and maintained by the Minister, with Statements being available for public inspection online.

What happens if reporting entities do not report?

In the event that a reporting entity that is required to report under the Federal Bill does not report, similarly to the UK Act, no financial penalties will be imposed on that entity. However, the Minister does have the power to request an explanation from an entity about its failure to comply with a requirement in relation to Modern Slavery Statements, and may also request that the entity undertake remedial action in relation to that requirement. If the entity fails to comply with the request, the Minister may publish information (including the identity of the entity) about the failure to comply on the Modern Slavery Statements Register or elsewhere. The publication of such information is likely to result in public, shareholder and investor criticism, which can be costly to the reputation of reporting entities.

The critiques of the Federal Bill

While the Federal Bill is very young, it has received some critiques.

Human Rights Watch has argued that the Federal Bill ‘falls short of an effective response to the widespread and growing role of modern Slavery in Australia’s supply chains.’ Among other things, it stated that the monetary threshold is too high thereby limiting the scope of application of the Federal Bill. Further, it contends that because the Federal Bill does not require entities to carry out due diligence, they may simply engage in a ‘”checking the box” exercise’. It recommends that minimum guidelines for due diligence that are ‘proportional to the size of a company’s supply chain and modern slavery risk’ be introduced in the Federal Bill. It has also strongly recommended the inclusion of financial penalties for failure to report under the Federal Bill in order to provide an ‘additional incentive toward compliance’ by businesses.

Oxfam International notes that the Federal Bill is ‘not strong enough’ as it is ‘missing critical elements to ensure companies will be compelled to take the urgent action needed to protect’ victims of modern slavery in their operations and supply chains. It argues that the Federal Bill should include penalties for entities that fail to report and an independent oversight body should be established to monitor the implementation of the Bill. 

Similarly to Oxfam International, Justine Nolan and Fiona McGaughey have also stated that a shortcoming of the Federal Bill is the lack of penalties for non-compliance with the reporting requirement. They argue that enforcement is effectively left to NGOs, shareholders and investors to ‘put pressure on the companies to comply with their reporting obligations’. They also state that the lack of independent oversight raises questions regarding the ‘efficacy’ of the reporting requirement.

Modern Slavery Act in New South Wales

In June 2018, prior to the passing of the Federal Bill, the NSW Act was passed (for more on the NSW MSA, see here and here). The NSW Act requires ‘commercial organisations’ to prepare an annual Modern Slavery Statement. ‘Commercial organisations’ are organisations with more than one employee in NSW that supply goods and services for profit or gain with a total global turnover of not less than $50 million per financial year. The criteria that must be satisfied by the Statement will be set out in regulations that have not yet been introduced in the NSW Parliament. However, the criteria may include information about the following:

a)     the organisation’s structure, its business and its supply chains,

b)     its due diligence processes in relation to modern slavery in its business and supply chains,

c)     the parts of its business and supply chains where there is a risk of modern slavery taking place, and the steps it has taken to assess and manage that risk,

d)     the training about modern slavery available to its employees.

Unlike both the UK Act and the Federal Bill, the NSW Act has teeth as failure to report may result in financial penalties of up to $1.1 million being imposed on the relevant organisation. Further, failure to make a Modern Slavery Statement public or to provide false or misleading information in a Statement carry financial penalties of up to $110,000.

The position as to whether entities will be required to report under both the Federal Bill and the NSW Act is still unclear. However, the NSW Act does state that it will not apply to a commercial organisation where it is subject to obligations under a Commonwealth law that is ‘prescribed as a corresponding law’. The Federal Bill is yet to be prescribed as a ‘corresponding law’. If it is so prescribed, then entities that would otherwise be required to report under the Federal Bill and the NSW Act will only be required to report under the Federal Bill. Accordingly, the NSW Act will capture entities with a total global turnover of between $50 million and $100 million.

Conclusion

The Federal Bill and the NSW Act are part of the wider movement towards greater corporate regulation and transparency with respect to human rights. It marks another steps towards the implementation of the UN Guiding Principles on Business and Human Rights globally and aims at fostering corporate respect for human rights.

It is clear that the Federal Bill and NSW Act have been heavily influenced by the UK Act but have addressed some of the shortcomings of the UK MSA discussed in the first blog post. In particular, the Federal Bill has mandatory criteria that reporting entities are required to report on and it is likely that the NSW Act will also have similar mandatory criteria. The UK Act on the other hand has optional criteria meaning that business are only required to publish a Modern Slavery Statement that is signed by a director and approved by the Board – the content of the Statement is irrelevant. The use of mandatory criteria is more likely to inspire change within businesses in Australia with respect to their practices relating to addressing and preventing modern slavery.

Similarly to the UK Act, the Federal Bill does not impose financial penalties on businesses that fail to comply with the reporting requirement. It does however give the Minister power to request an explanation from an entity about its failure to comply with a requirement in relation to Modern Slavery Statements, and to publish information in the event of non-compliance with such a request. The effectiveness of this provision will depend on whether the Minister invokes it. The NSW Act goes beyond both the UK Act and Federal Bill by imposing financial penalties on businesses that fail to comply with its reporting requirement. This is a big step forward in the fight against modern slavery as it is likely to incentivise businesses to take active steps to combat modern slavery in their operations and supply chains.

The Federal Bill will come into force on 1 January 2019. It is likely that the NSW Act will come into force around the same time. Accordingly, the first Modern Slavery Statements will be due by 1 January 2021. The date on which the first Modern Slavery Statements will be due under the NSW Act will be known once the regulations have been introduced. It is likely that the reporting dates of the Federal Bill and the NSW Act will be aligned in order to decrease the administrative burden on entities.

[1] An body corporate will also carry on a business in Australia if it establishes or uses a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be, or administers, manages, or otherwise deals with, property situated in Australia, or in the State or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.

Editor’s note: You will find attached to this blog the background paper to the event Five Years Later: Rana Plaza and the Pursuit of a Responsible Garment Supply Chain hosted by the Asser Institute in The Hague on 12 April. 

Background paper: executive summary

Raam Dutia & Abdurrahman Erol (Asser Institute)

The collapse of the Rana Plaza building on 24 April 2013 in Savar, Bangladesh, left at least 1,134 people dead and over 2,500 others wounded, while survivors and the families of the dead continue to suffer trauma in the aftermath of the disaster. The tragedy triggered a wave of compassion and widespread feelings of guilt throughout the world as consumers, policy makers and some of the most well-known companies in Europe and North America were confronted with the mistreatment and abject danger that distant workers face in service of a cheaper wardrobe.

Partly in order to assuage this guilt, a number of public and private regulatory initiatives and legal responses have been instituted at the national, international and transnational levels. These legal and regulatory responses have variously aimed to provide compensation and redress to victims as well as to improve the working conditions of garment workers in Bangladesh. Mapping and reviewing how these responses operate in practice is essential to assessing whether they have been successful in remedying (at least partially) the shortcomings that led to the deaths of so many and the injury and loss suffered by scores more.

This briefing paper outlines and provides some critical reflections on the steps taken to provide redress and remedy for the harm suffered by the victims of the catastrophe and on the regulatory mechanisms introduced to prevent its recurrence. It broadly traces the structure of the panels of the event. 

In line with Panel 1 (Seeking Justice, Locating Responsibility), the paper begins by focusing on litigation that has been conducted to secure justice and compensation for the victims, as well as to bring the relevant actors to account for their alleged culpability for the collapse. To this end, the paper examines the avenues that have been taken to hold corporations legally accountable in their home jurisdictions for their putative contributions to the collapse on the one hand, and individuals (particularly local actors) legally accountable before the courts in Bangladesh on the other; it then considers softer mechanisms aimed at compensating victims and their dependants. 

In keeping with Panel 2 (Never again! Multi-level regulation of the garment supply chain after Rana Plaza: Transnational Responses), the paper then considers the transnational (public and private) regulatory responses following the tragedy, enacted by stakeholders including NGOs, industry associations, trade unions and governments and largely connected to issues surrounding labour standards and health and safety.

Finally, in line with Panel 3 (Never again! Multi-level regulation of the garment supply chain after Rana Plaza: National Responses), the paper looks at numerous (soft and hard) regulatory developments at the national level in response to the Rana Plaza collapse. It charts the legislative response by the government of Bangladesh to attempt to shore up safety, working conditions and labour rights in garment factories. It also focuses on legislative and other arrangements instituted by certain national governments in the EU, and how these arrangements relate to the United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises.

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 Australian Human Rights Commission (AHRC) is charged with leading the promotion and protection of human rights in Australia and with ensuring that Australians have access to effective complaint and public inquiry processes on human rights matters (see the Australian Human Rights Commission Act No 125, hereinafter ‘the Act’). The AHRC was established in 1986 as the Human Rights and Equal Opportunity Commission but underwent a name change and several other amendments through the 2003 Australian Human Rights Commission Legislation Bill (see also the Explanatory Memorandum). The AHRC primarily exercises the functions conferred on it by four federal anti-discrimination acts, namely the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, and the Sex Discrimination Act 1984 (see s.11). It is further empowered to act on the basis of several international human rights instruments such as the ICCPR (see here). Specifically, the AHRC advises the federal government on the compatibility of its legislation with human rights, promotes an understanding and acceptance of human rights in Australia, undertakes research and educational programmes, intervenes in court proceedings as an amicus, and it may handle complaints through its conciliatory process (see s.11 (1) (a)-(o)). Notably, the AHRC enjoys an open-ended mandate in that s.11 (1) (p) stipulates that it may undertake any action that is incidental or conducive to the performance of the functions contained in subparagraphs (a) to and including (o). The Commission is made up of one president and seven specialised commissioners (see s.8 (1)). Its headquarters are located in Sydney.

This article analyses two types of actions in order to assess the extent to which the AHRC 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 will be shown, the AHRC’s mandate to entertain complaints against companies is rather limited in terms of subject-matter jurisdiction. On the other hand, the Commission plays a prominent role in the promotion and operationalisation of the UNGPs in Australia.

As to direct participation to access to remedy, three types of complaints fall under the jurisdiction of the Commission’s complaints mechanism. Firstly, the AHRC may resolve complaints alleging unlawful discrimination, harassment and bullying in so far as they relate to one of the prohibited grounds of race, disability, age and sex (including gender identity, intersex status and sexual orientation). The second type of complaints that the Commission may entertain are those relating to discrimination in employment. The prohibited grounds on which such a complaint may be based include a person’s criminal record, trade union activity, political opinion, religion and social origin. Thirdly, the AHRC may resolve complaints arguing breaches of any human right but only to the extent that the alleged perpetrator is the Australian government or one of its agencies. It should be borne in mind however that the Commission is an administrative body and that it therefore does not have the capacity to make binding and enforceable judicial decisions. As the High Court ruled in the Brandy case, such a power would be unconstitutional and the Commission may therefore only act in a conciliatory capacity.

Once such a complaint is filed, the Commission begins a non-adversarial process of conciliation whereby it seeks to help the parties reach an agreeable outcome. The most common types of reparations include apologies, policy changes and pecuniary compensation. Out of 1,262 conciliation processes carried out in 2017-2018, 74% were successfully resolved according to both parties (see here at page 15). Nevertheless, if such an outcome cannot be reached, complaints may be taken further to the federal courts. This process exemplifies the Commission’s complementary role in providing remedy for human rights violations. Nonetheless, the AHRC’s complaints mechanism suffers from a narrow mandate in terms of business and human rights. It may only entertain complaints against companies in so far as these fall under the first or second category of complaints. Other alleged breaches of human rights against companies escape the Commission’s competences. The AHRC’s direct participation in providing access to remedy in business and human rights cases is therefore rather limited. While the conciliatory process fits the role envisioned for NHRIs under the UNGPs, the limitation of the mandate to allegations of discrimination curtails the AHRC’s potential as an alternative to instituting judicial proceedings.

On the other hand, the Commission’s indirect participation in promoting access to effective remedy is slightly more robust. The AHRC has elaborated a fully-fledged business and human rights agenda upon which it has based several activities meant to raise awareness and promote dialogue (see also here at page 23). For instance, the Commission convenes an annual business and human rights dialogue jointly with the Global Compact Network Australia that focuses on capacity-building by helping businesses operationalise the UNGPs. Access to remedy has been a central theme in these dialogues (see for instance the outcomes of the 2015 and 2016 dialogues). The AHRC has further endeavoured to help companies internalise the UNGPs by developing easy to understand factsheets on how to best integrate human rights in business policies and practices. Alongside working with businesses, the Commission has collaborated with the civil society with the purpose of finding a way to better operationalise the UNGPs in Australia. In 2016, the AHRC hosted a roundtable discussion with civil society representatives, which culminated in a joint statement. This tackled among others the upcoming National Action Plan of Australia and the measures this should include to ensure adequate access to remedy. On a regional level, the AHRC has participated in the Interregional Dialogue on Business and Human Rights, which was hosted by the ASEAN Intergovernmental Commission on Human Rights. As a part of this dialogue, the Australian Commission convened a roundtable discussion on the NHRI’s engagement with business and human rights issues under the framework of the UNGPs (see here at page 42).

In conclusion, while the Australian Human Rights Commission plays an important role in the promotion and implementation of the UNGPs in Australia, its role is considerably more prominent in terms of indirect rather than direct participation in providing access to remedy for business-related human rights harms.

Two members of the Doing Business Right team, Antoine Duval and Catherine Dunmore have just published a policy brief feeding into the current debates on the use (and usefulness) of arbitration in the business and human rights context. More precisely, the brief makes the case for the creation of a single Court of Arbitration for Business and Human Rights. 

Here is the abstract: 

This policy brief makes the case for a single Court of Arbitration for Business and Human Rights (CABHR). It first highlights the challenges faced by victims of human rights violations caused or directly linked to the activities of transnational corporations (TNCs) in accessing effective remedy. It then discusses the opportunities and challenges in using arbitration to provide a remedy in the business and human rights context. If arbitration is to be used, we argue that it should be in the framework of a single CABHR, which could draw some inspiration from the structure and operation of the Court of Arbitration for Sport (CAS). The policy brief concludes by highlighting four core issues which stakeholders should focus on in the process of setting up a CABHR.

You can download the paper for free on SSRN.

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 a contributor to the Doing Business Right project of the Asser Institute. 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.

Over the past couple of years, there has been an international trend towards greater regulation and transparency with respect to modern slavery in corporate supply chains as reports of gross human rights violations in corporate supply chains have entered the public spotlight. For example, over the past couple of years there has been extensive media attention in relation to the use of slaves trafficked from Cambodia, Laos, Bangladesh and Myanmar to work on Thai fishing boats to catch fish to be sold around the globe, with the boats considered to be ‘floating labor camps’. As a result of events such as this, there has been increased pressure on businesses to take steps to address modern slavery in their supply chains through processes such as through conducting risk assessments and due diligence.

As the Ethical Trading Initiative notes, key risks facing companies in their supply chains include the use of migrant workers; the use of child labour; recruitment fees and debt bondage; the use of agency workers and temporary labour; working hours and wages; and the use of subcontractors. In 2016 the Global Slavery Index reported that 40.3 million people are living in modern slavery across 167 countries, and in 2014 the ILO estimated that forced labour in the private economy generates US$150 billion in illegal profits per year.

In March 2015, the UK Government passed the UK Modern Slavery Act 2015 (the Act), game-changing legislation that targets, inter alia, slavery and trafficking in corporate supply chains. The UK Government also published guidance explaining how businesses should comply with the Act.

This first blog of a series of articles dedicated to the global modern slavery developments provides an overview of the main elements of the Act and how businesses have responded to it. It will be followed by a review of the proposed Australian MSA, and a final piece on the developments in other jurisdictions that are considering introducing legislation regulating modern slavery in the corporate context.

Global businesses and modern slavery: The challenges

There are a number of challenges associated with modern slavery in a globalised economy. As Genevieve LeBaron and Andreas Rühmkorf[1] state there are in particular a number of regulatory gaps surrounding labour standards in corporate supply chains. Firstly, there is no binding international instrument or framework in place ‘that addresses the conduct of companies in global supply chains, and companies are not considered to be duty bearers in public international law’.[2] Secondly, there are gaps in the regulation and enforcement of labour standards by states. Thirdly, ‘the legal structure of global supply chains makes it difficult to hold multinational enterprises liable for violations that occur.’[3] Fourthly, the principles of extraterritoriality often result in host states’ laws applying rather than home states’ laws. As Shuangge Wen notes the notion of the extraterritorial application of legislation ‘remains alien to most of the civil law body’.[4] Another challenge she recognises is that the doctrine of separate legal personality which ‘effectively shield[s] [corporate] group members from being sued or liable’.[5] These doctrinal and practical obstacles to holding businesses accountable for modern slavery provide the wider backdrop to the Act and must be kept in mind when assessing its effectiveness.

Key Aspects of the Act 

Section 54 of the Act requires commercial organisations with a global annual turnover of at least £36 million to prepare a slavery and human trafficking statement annually through publishing a Modern Slavery Statement on their webpage in a prominent place.

What is ‘modern slavery’?

While there is no globally agreed definition of ‘modern slavery’ under international law, it does appear that modern slavery is an umbrella term that covers a range of exploitative practices. As summarised by Anti-Slavery International, human exploitation characterised by only one of the following features is classed as ‘modern slavery’: (i) coercion to work through either mental or physical threat; (ii) being owned or controlled by an employer, usually through mental or physical abuse or the threat of abuse; (iii) being dehumanised or treated as a commodity; or (iv) being physically constrained or with limited freedom of movement.

The Act does not specifically define ‘modern slavery’, however, its offences include slavery, servitude, forced or compulsory labour and human trafficking. While each of these practices has differences, they also have some similarities. So what are each of these practices?

• As set out in the Slavery Convention, slavery is ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.
• Servitude is similar to slavery; however, the person responsible for the situation does not exercise the powers of ownership over the other person.
• As defined in the ILO Forced Labour Convention 1930 (No. 29), forced or compulsory labour is ‘all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.
• ’Human trafficking is defined in the Act as occurring when a person arranges or facilitates the travel of another person (for example, through transporting, transferring or recruiting) with the view of that person being exploited.

Who is required to report?

The term ‘commercial organisations’ is defined as a body corporate or partnership that carries on a business, or part of a business, in the UK wherever that organisation was incorporated or formed. Such an organisation is required to report under s 54 if it supplies goods and services and has a total turnover of at least £36 million. Accordingly, the Act will apply to businesses regardless of its geographic location, so long as it carries on at least a part of its business in the UK.

The term ‘carries on a business’ is not defined in the Act. The guidance provided by the UK Government states that a ‘common sense approach’ should be applied in determining whether a body corporate or partnership is carrying on a business in the UK. However, ultimately, the ‘courts will be the final arbiter as to whether an organisation ‘carries on a business’ in the UK taking into account the particular facts in individual cases.’ As at the date of this blog, there have been no court cases in which the court has had to consider whether a particular commercial organisation is carrying on a business in the UK.

Organisations that do not meet the definition of ‘commercial organisations’ can voluntarily produce a Modern Slavery Statement. 

What are commercial organisations required to report on?

Commercial organisations are required to report on the steps they have taken to ensure that slavery and human trafficking is not taking place in any of their supply chains and in any part of their business, or that they have taken no such steps. The Act sets out optional criteria which statements may include information about, namely:

• (a)   the organisation’s structure, its business and its supply chains;
• (b)   its policies in relation to slavery and human trafficking;
• (c)   its due diligence processes in relation to slavery and human trafficking in its business and supply chains;
• (d)   the parts of its business and supply chains where there is a risk of slavery and human trafficking taking place, and the steps it has taken to assess and manage that risk;
• (e)   its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate;
• (f)     the training about slavery and human trafficking available to its staff.

Accordingly, the Act is not prescriptive about the content of Modern Slavery Statements. The guidance provided by the UK Government provides tips on how to write a Modern Slavery Statement (for example, it is suggested that companies keep the statement succinct but cover all relevant points) and how to structure the statement

Who is responsible for reporting?

The Board of directors will bear the ultimate responsibility for Modern Slavery Statements with the Act requiring the Board to approve the statement and a director to sign the statement. As the UK Government guidance notes, this ‘ensures senior level accountability, leadership and responsibility for modern slavery and gives it the serious attention it deserves.’ For limited liability partnerships, the statement must be approved by the members and signed by a designated member.

What happens if commercial organisations do not report?

In the event that a commercial organisation that is required to report under the Act does not report, the Secretary of State may seek an injunction from the High Court requiring the organisation to comply (or, in Scotland civil proceedings for specific performance of a statutory duty under section 45 of the Court of Session Act 1988). If the injunction is not complied with, the organisation will be held in contempt of a court order, which is punishable by an unlimited fine. In a public hearing held earlier this year, the UK Home Office commented that the UK Government did not go down a ‘more punitive route’ with respect to enforcement ‘to avoid pushing businesses away from transparency’ and that its approach so far has been to ‘work in partnership with business, to share best practice, to raise awareness and to encourage transparency’.

The UK Government guidance notes that it will be for ‘consumers, investors and Non-Governmental Organisations to engage and/or apply pressure where they believe a business has not taken sufficient steps’, suggesting that the Government will not take action on its own volition.

How have businesses responded?

As at the date of this blog, 6102 companies have published 7302 statements. The statements can be found on the Modern Slavery Registry website. This stands in stark contrast to the UK Home Office’s estimate of the number of companies required to report under the Act, being between 9,000 and 11,000 entities. However, as noted at the public hearings earlier this year, no injunctions have been taken against non-complying companies so as not to ‘discourage transparency’.

According to the Modern Slavery Registry, of the statements published, only 19% met the minimum requirements set out in the Act, namely: (1) the statement is published on the business’ website with a link on the home page; (2) the statement is signed by a director or equivalent; and (3) explicit approval by the Board is included in the statement. Further, the Business & Human Rights Resource Centre’s analysis of the Financial Times Stock Exchange 100's quality of reporting in the first reporting year across six reporting areas (as summarised in its report titled ‘Modern Slavery Reporting: Case Studies of Leading Practice’) showed that:

• 34% of companies complied with the organisational and supply chain structure reporting area;
• 38% of companies complied with the company policies reporting area;
• 46% of companies complied with the due diligence processes reporting area;
• 38% of companies complied with the risk assessment reporting area;
• 16% of companies complied with effectiveness of measures in place reporting area; and
• 38% of companies complied with the training reporting area.

Given the low level of compliance, as stated by the Business & Human Rights Resource Centre, it appears that a ‘vast majority of companies are failing to take effective action and must do more to address modern slavery.’ As Radu Mares notes, the quality of reporting demonstrates ‘paper compliance’ whereby companies are using a ‘tick-box approach’ to satisfy the requirements in the Act ‘without providing substantive or meaningful information.’[6] For example, in 2016 Ergon Associates reported that 35% of statements did not mention risk assessment procedures and two-thirds did not identify priority risks.

Modern slavery statements published by businesses to date highlight a number of key challenges and barriers facing business in addressing modern slavery. As the Ethical Trading Initiative notes, these include the following challenges:

• The complexity and length of supply chains.
• The insufficient resources they have to conduct due diligence and support supplier improvements.
• The extent to which they should provide transparency around their modern slavery risks and practices.
• Pressure from buyers to secure low prices from suppliers.
• Lack of leverage with suppliers in order to work with them to improve their practices.

The Ethical Trading Initiative states that the following is crucial to ensure modern slavery action is taken by commercial organisations: senior leadership engagement, organisational culture change, including ‘communicating and clarifying the values, attitudes, and understanding of modern slavery to help embed policies and make them effective’; and collaborations and partnerships amongst different stakeholders, including other companies.

The many academic critiques of s 54 of the Act

As LeBaron and Rühmkorf, note that although the Act is considered to be public regulation, it is indeed ‘fully dependent on private governance tools, standards, and enforcement mechanisms to meet its aims’ and does not introduce any new public standards.[7] Accordingly, it ‘blurs the binary frequently posited between ‘hard’ and ‘soft’ law in the governance of labour standards’.[8] Further, they argue that compliance with the Act does not actually require a business to take steps to address modern slavery in its supply chain – all that is required is that a statement be published on a company’s webpage signed by a director and approved by its Board. This is strengthened by the fact that the Act does not require businesses to report on mandatory criteria – rather it suggests criteria that a business can (but is not required to) report on, providing little incentive for companies to detail the actions they have taken (if any) to prevent and address modern slavery particularly given the lack of penalties for non-compliance.

As Shuangge Wen notes the absence of penalties and the call on the general public to use the information contained in statements is unlikely to encourage change within businesses. In other words, it is likely to have a limited ‘pragmatic effect’.[9] This is possibly the reason why there have been such low levels of compliance with reporting. She further argues that the Act leaves business responsibilities with respect to respecting human rights and preventing and addressing modern slavery up to the ‘individual organizations’ discretionary interpretation’.[10] However, as Radu Maries notes the Act’s requirement that directors sign off on statements has ‘raised the profile of modern slavery issues within companies’ and, as a result, had an ‘internal effect on risk management’ and lead to top-level leadership with respect to modern slavery issues.[11]

As Justine Nolan and Gregory Bott state that the Act fails to ‘set mandatory standards for what due diligence must encompass’ and does not hold companies ‘directly legally accountable for any actual adverse human rights impacts connected to their operations’.[12] Accordingly, they argue that it is unlikely to encourage businesses to take proper action to address modern slavery in their supply chains. They contend that an ‘improved approach’ is required that ‘links reporting with due diligence, requires detailed disclosures, has regulatory consequences for a failure to report, and utilises both public and private mechanisms and the shared leverage of all relevant stakeholders’ in order to effect change with respect to combatting modern slavery.[13]

Virginia Mantouvalou presents a number of interesting arguments to contend that the Act is a ‘weak’ mechanism to prevent and address modern slavery.[14] While she notes that the Act’s soft law approach’ to regulating modern slavery in corporate supply chains is ‘not necessarily problematic at a theoretical level’, she states that self-regulation present many challenges and may not be the ‘best way to deal with business misconduct’ by itself.[15] This is because self-regulation can be seen as ‘simply protecting businesses from reputational damage and for limiting their liability’, rather than encouraging businesses to take concrete steps to combat modern slavery.[16] She further argues that the Act is overly narrow in its focus, with the Act regulating slavery, servitude, forced and compulsory labour and human trafficking to the exclusion of other exploitative practices. This suggests that only a subset of exploitative practices are present in business conduct.

Mantouvalou contends that the corporate transparency provision in the Act has been designed in such a manner that ‘it cannot be effective’. The weaknesses of the provision include:

• The lack of a central list containing the names of businesses required to report.
• The lack of a mechanism to monitor compliance with the Act.
• The lack of a central repository for statements that have been published by businesses.
• The lack of penalties for non-compliance with the Act and remedies for victims of modern slavery in corporate supply chains.
• The lack of awareness of the Act amongst businesses.

She does however note that the Act has ‘generated discussions by companies that might not otherwise have considered the problem of severe labour exploitation’.

Conclusion

Despite the criticism that the Act has received, it has nonetheless been widely recognised that it is a step in the right direction towards increasing corporate transparency with respect to modern slavery. However, as the UK Home Office acknowledged earlier this year, while there has been progress ‘there is absolutely more to do’. So where to from here?

Well, a couple of months ago, the UK Government announced that it would be launching an independent review of the Act. As stated in the terms of reference, the aim of the review is to ‘report on the operation and effectiveness of, and potential improvements to,’ the Act. With respect to s 54 of the Act, a specific issue that has been noted as requiring consideration is how to ensure compliance and increase the quality of statements produced by commercial organisations. This blog aims to contribute to the future work of the independent review by providing a quick overview of the key critiques raised against the Act. Furthermore, it is essential that other countries considering the introduction of similar legislation take careful stock of the important lessons learned from the UK experiment to design more efficient modern slavery legislations, but that will be the subject of our next blogs.

[1] Genevieve LeBaron and Andreas Rühmkorf, Steering CSR Through Home State Regulation: A Comparison of the Impact of the UK Bribery Act and Modern Slavery Act on Global Supply Chain Governance (2017) Global Policy 8(3), 15.

[2] Ibid, 19.

[3] Ibid, 20.

[4] Shuangge Wen, The Cogs and Wheels of Reflexive Law – Business Disclosure under the Modern Slavery Act (2016) Journal of Law and Society 43(3) 327, 335.

[5] Ibid.

[6] Radu Mares, Corporate transparency laws: A hollow victory (2018) Netherlands Quarterly of Human Rights 36(3), 189, 197.

[7] Genevieve LeBaron and Andreas Rühmkorf, Steering CSR Through Home State Regulation: A Comparison of the Impact of the UK Bribery Act and Modern Slavery Act on Global Supply Chain Governance (2017) Global Policy 8(3) 15, 17.

[8] Ibid.

[9] Shuangge Wen, The Cogs and Wheels of Reflexive Law – Business Disclosure under the Modern Slavery Act (2016) Journal of Law and Society 43(3) 327, 358.

[10] Ibid, 359.

[11] Radu Mares, Corporate transparency laws: A hollow victory (2018) Netherlands Quarterly of Human Rights 36(3), 189, 198.

[12] Justine Nolan and Gregory Bott, Global Supply Chains and Human Rights: Spotlight on Forced Labour and Modern Slavery Practices (2018) Australian Journal of Human Rights 1, 10.

[13] Ibid, 11.

[14] Virginia Mantouvalou, The UK Modern Slavery Act 2015 Three Years On (2018) The Modern Law Review (2018) 81(6) 1017, 1017.

[15] Ibid, 1038, 1040.

[16] Ibid, 1040.

Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

On 29^th June 2017, four Nigerian widows launched a civil case against Royal Dutch Shell (RDS), Shell Petroleum N.V., the Shell Transport and Trading Company, and its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) in the Netherlands. Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, the companies had provided material support, which then led to the arrest and death of the activists.  

In the light of this lawsuit, it is interesting to retrace the so-called ‘Ogoni Nine’ legal saga. The case saw the interplay between multiple jurisdictions and actors, and its analysis is useful to point out some of the main legal issues encountered on the path to hold corporations accountable for human rights abuses.

The ‘Ogoni Nine’

‘Ogoni Nine’ is the name given by the media to a group of Nigerian men – Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, John Kpuine, and Ken Saro Wiwa – who were arrested for the alleged murder of four people. On 10^th November 1995, they were executed in Port Harcourt, Southern Nigeria. To understand what led to this episode, it is important to provide some historical context.

Royal Dutch Shell has been undertaking drilling operations in Nigeria since 1958, carried out through SPDC.[1] As explained by the UNEP environmental assessment report of 2011, both water and land were polluted by the extraction of oil and gas, causing massive environmental harm. This drove the inhabitants of Ogoniland, a region in the Niger Delta, to strongly oppose those activities. Thus, they created the Movement for the Survival of the Ogoni People (MOSOP), lead by Ken Saro-Wiwa:[2] in 1993, the movement counted more than 300 000 activists, half of the Ogoni population. They engaged in protests against the Nigerian government – which was accused of turning a blind-eye to Shell’s activities, since they provided for the majority of Nigeria’s export earnings[3] - and against companies extracting the oil, Shell amongst others.

In 1994, the ‘Ogoni nine’ were apprehended and held in military custody; no charges were pressed during their first eighteen months in prison. Eventually, a special military court tried them for the murder of four people, they were found guilty, and then hanged. The manner in which the trial was conducted caused the outrage of the international community and ultimately resulted in the suspension of Nigeria from the Commonwealth.

The Wiwa cases in the New York courts

The first attempt to seek justice for the execution of the nine members of MOSOP took place in 1996, when the son of Ken Saro-Wiwa filed three different lawsuits in a New York District court: one against Royal Dutch Petroleum, one against Shell Petroleum Development Company, and the last against Brian Anderson, the head of Nigerian operations at Royal Dutch Shell. The plaintiff alleged the complicity of Shell in the human rights violations perpetrated by the Nigerian government against MOSOP. In particular, the plaintiff claimed that the company provided material support both to the repression of Ogoni activists during protests and to the actual apprehension of the Ogoni Nine.[4]

Among other things, Shell was accused of offering transport, food and property to Nigerian troops, used to commit human rights abuses, which, according to the plaintiff, amounted to crimes against humanity. Therefore, the claims were brought both under the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), and the Racketeer Influenced and Corrupt Organizations (RICO) Act.

After thirteen years of legal battles, the parties reached a settlement: Shell paid 15.5 million dollars, covering compensation and legal expenses.[5] However, the company issued no admission of guilt or apologies: it submitted that the payment was given to “aid the process of reconciliation”.[6] Without a doubt, the extrajudicial settlement was a victory for the Ogoni people. However, the absence of a final ruling prevents an in-depth analysis of the multiple legal issues raised by the case.

Nevertheless, one aspect should be highlighted: the suit resisted numerous attempts by the defendant to have the case dismissed on jurisdictional ground. Specifically, the Court of Appeal, overruling the first instance’s dismissal, carried out an in-depth analysis on why the claim fell within the scope of US jurisdiction. It was found that Shell performed a variety of activities in the U.S. and that the claimant was also residing there. Therefore, there were no grounds to dismiss the case, neither under personal jurisdiction, nor under forum non conveniens. These conclusions remain particularly important, especially in the light of the following Kiobel case.

The Kiobel case and the Alien Tort Statute

In 2002, Esther Kiobel filed a civil claim against Shell under the Alien Tort Statute (ATS). This 1789 American Statute allows US District Courts to exercise civil jurisdiction on a claim brought by an alien alleging the violation of the law of nations. The plaintiff accused the defendant of aiding and abetting the Nigerian government to commit the violations of international law at hand in the Wiwa proceedings.

The case made it all the way to the Supreme Court, which famously held that the ATS was not applicable to the fact pattern. The 2013 decision of the Supreme Court was based on two main Arguments. First, the Court seemed unconvinced that the norms allegedly violated are “specific, universal and obligatory” as prescribed in Sosa v. Alvarez-Machain et al. Second – and most importantly – the conduct alleged by the plaintiff does not “touch and concern” the U.S. with a sufficient force, which will allow rebutting the presumption against extraterritorial application of the Statute.

The ruling of the Supreme Court attracted many comments and criticism: specifically, the concerns revolve around the interpretation of the ATS’ scope of application, and its possible impact on the outcome of other cases. Indeed, the application of the Statute turns out to be substantially limited by the narrow interpretation given in Kiobel. Regardless of the nationality of the parties, the Court seems to imply that the conduct should take place – at least partly – in the United States. Mere corporate presence is not considered to be enough of a link to ground jurisdiction of American courts.[7] In general, legal scholars are still debating some core questions, left unresolved by the Kiobel decision, related to the scope of the ATS.[8] In any event, the U.S. proved to be an inadequate forum to provide redress to the families of the ‘Ogoni Nine’.

The new Dutch lawsuit

A claim recently lodged in The Netherlands seeks to, at last, hold Shell accountable for the plight of the ‘Ogoni Nine’. Their widows are represented by Channa Samkalden – from the Amsterdam law firm Prakken D’Oliveira – which is managing the Dutch case with the support of Amnesty International.

An indication of what was about to happen came last October when Esther Kiobel petitioned a New York District Court to request discovery by the U.S. lawyers of the respondent. The documents requested were deemed necessary to seek redress for the violation of the applicants’ husbands “right to life, their right to a family life and their right to personal dignity and integrity”.

The new Writ of Summons refers to the “international jurisdiction of Dutch courts” under the Brussels I Regulation and the Dutch Code of Civil Procedure (CCP). The plaintiffs set out three different grounds for jurisdiction. Art. 4(1) and 63 Brussels I (recast Regulation) are used as a jurisdictional basis on RDS.[9] Jurisdiction on the non-Dutch defendant is instead grounded in art. 7(1) CCP, which provides for the possibility to attract multiple defendants to the same forum, where the claims against them are connected. Alternatively, jurisdiction over SPDC could also be established pursuant to art. 9(1) CCP, providing for the rule of forum necessitatis: i.e. Dutch courts have jurisdiction, provided that the claim is sufficiently connected to the Dutch legal sphere and that it is unacceptable to expect the claimant to submit the case to the judgment of a foreign court. The claimants submit that the Dutch parent companies wholly own SPDC, and that the defendants acted as a single entity when perpetrating the alleged conduct. Moreover, one cannot expect the claimants to file the lawsuit in Nigeria, given the involvement of the State apparatus in the events at issue. This argument is further reinforced by the fact that both Kiobel and Bera have been granted refugee status abroad.

To fully appraise the soundness and the chances of success of these jurisdictional grounds, it is necessary to take a step back and to look at the question through the lens of Private International Law (PIL).

Grounds for jurisdiction in PIL: between the European and the national level

Some scholars[10] had already anticipated that the failure to secure jurisdiction under the ATS in the Kiobel case was likely to result in a rekindled attention for PIL rules in business and human rights cases. As far as jurisdiction is concerned, the European PIL instrument par excellence is the Brussels I Regulation “on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters” within the EU.[11] In this framework, establishing jurisdiction over the parent company is fairly unproblematic. Art. 2 and 60 of the Regulation (transposed in art. 4 and 63 of the Recast) provide that defendants domiciled in a Member State can in principle be attracted in front of the courts of that Member States. This applies also to companies who are seated/have their central administration/have their principal place of business in that Member State.

However, the situation becomes more complex when foreign subsidiaries, especially if incorporated in States outside the EU, come into play. In the Kiobel case, the Dutch court claiming jurisdiction over SPDC is essential for the success of the case as the Nigerian subsidiary was at the heart of the events leading to the death of the ‘Ogoni Nine’. There are two potential grounds for an EU based court to have jurisdiction over non-EU based subsidiaries: the rule on multiple defendants based on related actions and the principle of forum necessitatis.[12] The latter is not provided for in the Brussels I regime. Hence, it is up to national legislation to include such a ground in their PIL. As far as the former is concerned, art. 6(1) Brussels I (art. 8(1) Recast) prescribe that a foreign defendant might faced court proceedings together with a domestic one when the claims against them “are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”. The actual scope of application of this paragraph is sometimes hard to grasp. For instance, it is doubtful whether it could apply to non-EU based companies.[13] A negative answer will result in the need to resort to national rules of PIL. Thus, the possibility of Dutch courts having jurisdiction in a case involving a subsidiary such as SPDC will most likely hinge on Dutch rules regarding jurisdiction.

Two valuable precedents

An analysis of two recent cases – one in the UK and one in the Netherlands – can shed some light on the issue. In fact, both of them involved Shell and SPDC as defendants, and also invoked Brussels I as a ground to establish jurisdiction.

In the UK case, more than 40.000 individual claimants brought a class action against Shell over alleged environmental damages linked to oil spillage. On 26^th January 2017, the High Court of Justice (Queen’s Bench Division) ruled that the claims should be heard in Nigeria. Although jurisdiction over the conduct of RDS could be established pursuant to art. 4 Brussels I Recast Regulation, the possibility to try SPDC was to be assessed under domestic PIL, and specifically, the CPR Practice Direction 6B. Paragraph 3.1(3) of the CPR Practice Direction 6B provides that a claim against multiple defendants could be served if (a) the issue between the claimant and the first defendant is a real issue, “which it is reasonable for the court to try”, and (b) the other defendant is a “necessary and proper party to the claim”. Thus, the English Court focused on verifying whether the claimant had a cause of action against the “anchor defendant” (i.e. RDS). Examining the evidence, the Court held that RDS had no duty of care over the extraction activities carried out by SPDC, and, hence, there was no legal claim that would tie the issue to UK jurisdiction (§118).

In a previous decision, the Dutch courts came to an opposite conclusion. Similarly, the three joint cases[14] concerned alleged negligence of RDS and SPDC with regard to the environmental damages caused in the Niger delta. On 18^th December 2015, the Court of Appeal of The Hague held that Dutch courts have jurisdiction to hear the claim both against the parent company (pursuant to art. 2(1) and 60(1) Brussels I)[15] and SPDC (pursuant to both art. 6(1) Brussels I and art. 7(1) Dutch Code of Civil Procedure (CCP)). Art. 7(1) CCP prescribes that a defendant might fall under the jurisdiction of Dutch courts when jurisdiction is established against another defendant, “provided that the rights of action against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency”. Therefore, it resembles art. 6(1) Brussels I, and, moreover, the two norms were interpreted by the Court as linked and mutually reinforcing. As a result, the Court stated that the interest of having the claims against both companies heard together prevails over the allegations that the contentions against SPDC should be heard in Nigeria.

Comparing the two judgements, it appears that the two Courts have tackled the issue from two different angles, which reflect the wording of their domestic PIL. In particular, the Dutch Court deferred the question of whether the claims against the parent company were founded for a later phase of the proceeding, holding that it was too soon to determine whether these claims were bound “to fail from the outset”(§3.7). Moreover, the Court referred to the principle of perpetuatio fori. In other words, jurisdictional questions are solved at the outset of the proceeding. In the event claims against RDS proved unfounded on the merit, jurisdiction over SPDC would still stand.

Therefore, the ruling of The Hague Court of Appeal, and the regime provided in CPP by both art. 7(1) and 9 might prove to be a key element for the success of the new Kiobel lawsuit. Were the Dutch Court to find the claims against Shell and SPDC substantially interwoven (in the meaning of art. 7(1) CCP), arguably the need to hear the allegations against the two companies in the same proceeding would outweigh the reasons for having two separate judgements in the Netherlands and in Nigeria. In the alternative, art. 9 CCP, prescribing the principle of forum necessitatis, could still provide a jurisdictional ground on SPDC.

Conclusion

The new Kiobel case brings to the fore the strategies and opportunities available to victims seeking redress from multinational companies for human rights abuses. The strict interpretation of the ATS by the Supreme Court in the American edition of the Kiobel case has caused a geographical re-location of the complaints towards Europe and, in particular, The Netherlands where Shell is seated. In this regard, the jurisdictional regime stemming from private international law rules becomes crucial.

Notwithstanding the valuable ground provided by the Brussels I regime,^[16] the national norms on PIL still play a predominant role, at least with regard to the establishment of jurisdiction over non-EU based subsidiaries. As the UK and Dutch cases show, these rules might be more or less flexible and entail diverse legal reasoning potentially leading to contradictory outcomes, and which will ultimately determine the possibility to have the case heard on the merit.

The 2015 precedent bodes well for the Dutch Court to assert jurisdiction in the new Kiobel case. Albeit this does not mean the Court will side with Kiobel and the other widows on substance. Winning on jurisdiction would be a first step, a key initial success necessary to be properly heard, but for the claimants there would still be a long and difficult road ahead before finding justice.  

[1] E. Hennchen, Ibid.

[2] NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009

[3] BBC, 1995: Nigeria hangs human rights activists, 10 November 1995

[4] NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009

[5] Ibid.

[6] Ibid.

[7] S. H. Cleveland, After Kiobel, in  Journal of International Criminal Justice, 2014, 556

[8] See N. Bhuta, The Ninth Life of the Alien Torts Statute - Kiobel and After, in Journal of International Criminal Justice, 539-550; S. H. Cleveland, After Kiobel, in Journal of International Criminal Justice, 2014, 551-577

[9] Prescribing that a claim must in principle be lodged at a court located in the Member States where the defendant is domiciled. Regulation 1215/2012/EU (Brussels I)

[10]See G. van Calster, C. H. Luks, Extraterritoriality and Private International Law, in Recht in Beweging, 2012, 119-135 and G. van Calster, The Role of Private International Law in Corporate Social Responsibility, Erasmus Law Review, No.3, November 2014, 125-133.

[11] The Brussel Regimes now comprises Regulation 44/2001/EC (Brussels I), and was recast as Regulation 1215/2012/EU .

[12] The principle establishes that a State can exercise jurisdiction, when otherwise there will be no access to justice, due to the unavailability of an alternative forum.  F. J. Zamora Cabot, L. Heckendorn Urscheler, S. De Dycker, Implementing the U.N. Guiding Principles on Business and Human Rights. Private International Law Perspectives, Schulthess Medias Juridiques, Geneva, 2017, 43

[13] F. J. Zamora Cabot, L. Heckendorn Urscheler, S. De Dycker, op. cit., 2017, 45 and 147

[14] Court of Appeal of the Hague, A.F. Akpan v. Royal Dutch Shell, plc; E. Dooh v. Royal Dutch Shell, plc; F.A. Oguru v. Royal Dutch Shell plc, 18 December 2015

[15] The two articles refer to the first versions of Brussels I Regulation 44/2001/EC; they are the equivalent of art. 4 and 63 of the recast Regulation.

[16] D. Lustig, Ibid.

Editor’s note: Imke B.L.H. van Gardingen (LLM Int. and EU labour law, MA Korean Studies) is a policy advisor on labour migration at the Dutch Federation of Trade Unions (FNV) and a researcher on DPRK overseas labour.

On November 8, 2018 a North Korean overseas worker who had worked in slave like conditions for a Polish shipyard, a supplier of a Dutch shipbuilding company, has filed a criminal complaint against the Dutch firm. The Dutch Penal Code, article 273f(6), includes a provision criminalizing the act of ‘profiting’ from labour exploitation, targeting not the direct perpetrators in the labour exploitation, but the ones profiting from this exploitation. This is a unique case that aims to hold the company at the top of the chain accountable for modern slavery in its supply chain. A chain that in the case of shipbuilding is rather short; the buyer subcontracts the core business of building the complete hull under detailed instructions cheaply abroad.

Research on DPRK workers in Poland
The case of the DPRK workers in two Polish shipyards was brought to light in two reports, published by the LeidenAsiaCentre (available online here and here), a research institute affiliated with Leiden University.[1] In this research we demonstrated how well documented the case of the exploitation of DPRK workers in Poland is. Due to EU-mandated minute record-keeping and frequent inspections by the labour inspectorate, a very precise picture was obtained of how the workers work, live, and are managed. How they are or are not paid and who their actual or paper employers were, as well as under what specific circumstances they work. In both reports it was established that the working conditions and the situation of DPRK workers amount to labour exploitation. What makes the EU case particularly interesting is that the rights of migrant workers in the EU are quite well protected, at least on paper. This offers interesting angles to explore concrete routes in the context of the EU legal arena.[2]

Explanation of the case
DPRK workers are recruited in North Korea to work overseas. The selection criteria range from being a loyal party member to being married and preferably having children to secure the risk of defection. Only shortly before departure do the workers receive information on the country they will go to; the travel is arranged for and mostly through North Korean embassies abroad. Upon arrival the workers hand in their passports and start working right away without ever receiving a working contract, having a bank account or obtaining knowledge on the working conditions and height of the salary. The workers are mostly employed by a DPRK company registered in Poland or a Polish-North Korean joint venture and detached to other companies, which is often illegal according to their working permits. As contractors, the DPRK companies of the joint ventures receive payment for the assignment. A fraction of that amount is paid to the workers. There is a wide gap between the formal monthly payment, of which the payslips with falsified signatures are included in the labour inspection report, and the payment the workers actually receive. The payment is irregular, sometimes once a month, but mostly not. Also the amount of the payment is variable, it can range from a few dollars to a few hundred dollars a month, minus arbitrary deductions for housing, but also party loyalty fees. The Labour Inspectorate has often reported hazardous working situations, and also documented one fatal accident where none of the required safety measures were met. Workers live in poor conditions; too cramped, moisty with fungus causing headaches, without proper washing facilities so workers had to wash on the working site. Excessive overwork is common as workers are presented as never having to take a rest and as being able to work continuously, day and night 7 days a week. And being DPRK citizens, they are not free to leave from the worksite, nor to anyplace else.

All in all, it is safe to conclude that the labour of DPRK workers in Poland can be labelled as ‘forced labour’, as is also confirmed by the Polish labour inspectorate in the documentaries ‘Cash for Kim’ and ‘Dollar Heroes’ (produced by the Why Foundation in a series called ‘Why Slavery’), the UN special rapporteur on DPRK and the US report  on human trafficking. The question then is who can be held accountable for violating the labour and human rights of DPRK workers and account for the profits made as a consequence of these violations.[3] The DPRK supplying the workers, the direct or indirect employers as the perpetrators, subsidiaries or business partners giving the orders and profiting from it, or all of them? The issue of liability can shift from fault based liability to strict liability, which could be justified by the fact that all the parties involved profited from –intolerable - slave labour.

Our first and second report on DPRK labour in Poland have shown that Polish Shipbuilding companies in Gdynia and in Szczecin work together closely with Dutch Shipbuilding partners on financing vessels, supplying parts, project management, technical know-how, security, obtaining quality certificates and sharing EU funding.[4] The cases offer sufficient proof of close partnership and cooperation. The key question is whether in the case of proved abuse and labour exploitation, the Dutch legal framework can be used to hold the partner companies accountable. If so, companies could also be held accountable for criminal offenses if the exploitation is deemed severe enough to fulfil the conditions enshrined in Article 273 of the Dutch Penal Code, and specifically Article 273f(6), criminalising ‘profiting from the exploitation of a person’. Prof. Ryngaert from Utrecht University believes it is a very real possibility. He states,

It is the territorial benefit which a corporation draws from exploitive practices, regardless of location, that serves as the jurisdictional linchpin. Accordingly, Article 273f(6) of the Dutch Penal Code creates opportunities to trigger Dutch jurisdiction over corporations linked to acts of exploitation somewhere down the supply chain, and ultimately hold them liable.[5]

In terms of liability he argues,

In general however, it can be stated that a corporation's liability will be engaged when it consciously accepted the risk that the goods it bought were produced in substandard conditions, including conditions of labour exploitation, even if the corporations did not intend such conditions to occur, and if the corporation did not have positive knowledge of the conditions

It is now up to the Dutch Prosecution Office whether they will take up the case and prosecute the suspected Dutch company for ‘profiting’ from labour exploitation. There will be legal counter-arguments raised, but other considerations will undoubtably also play a role. Such as the lack of capacity at the Dutch prosecution office that is severely understaffed, pressure from politicians and businesses who might prioritize short term economic interests. In any event, it will be an important and interesting case to follow. For the value of this case in particular, but  also for the window it might open for other cases in which workers are exploited to the benefit of the corporations sitting at the top of the chain.

A recent Dutch judgment from May 2018 is interesting in this respect, it involved the managing director of a Dutch large shipping company who was held liable for wrongdoings happening in –amongst other places- Bangladesh and who was sentenced to a fine of €50.000 and disqualified from his profession for a year.[6] Primarily, this case focussed on environmental offenses. The managing director violated ‘the stipulations of the European Regulation (EG) Nr. 1013/2006 of the European Parliament and the council of 14 June 2006 with regard to the transfer of waste materials (EWSR).’[7] But the following considerations are also included in the judgment and have played an important role in it:

Besides, the working conditions are appalling. The ships are manually scrapped by untrained labourers, who do not have the knowledge and expertise to recognize hazardous materials to take precautions and to follow procedures and who do not get sufficient protective clothing and auxiliary materials either. With such scrapping practices, several people are killed annually. Moreover, there is still child labour in the scrapping companies in Bangladesh.
The suspect has closed his eyes to this problem, of which certainly he as an executive director of a large shipping company must have been aware. With his considerations, he obviously only has had eyes for the commercial interest of the companies for which he was responsible.[8]

Furthermore, the judges concluded in their judgment:

‘[…] a fine in itself does not do justice to the severity of the facts. That is why a disqualification from his profession for the duration of one year will be imposed on the suspect. That also expresses the social importance that should be attached to an integer management. The suspect in particular, as CFO of a large company, who also bears final responsibility for the management, may be expected to take the additional social consequences of the performance of his tasks into consideration beside the business economic consequences of his decision, such as in this case the negative consequences for the environment and the health of the labourers in the shipbreaking yards. [9]

The suspect was therefore convicted of a ‘fine of €50,000,-, in default of full payment and full recovery to be replace by 285 days of detention’ and imposed ‘as an additional punishment on the suspect a disqualification of the right to practice the profession of (direct or indirect) executive director, supervisory board member, advisor or employee with a shipping company of any part thereof, such for the duration of 1 (one) year.’[10]

To conclude, the criminal complaint of the North Korean worker is potentially a ground-breaking complaint to enhance the accountability of Dutch corporations for labour exploitation occurring in their supply chains. The ball is now in the court of the prosecutor’s office, it’s up to them to decide whether they choose to let the corporations off the hook or to tackle the issue of slavery and forced labour in supply chains head-on by criminalising the irresponsible behaviour of certain corporations.

[1] Remco Breuker & Imke van Gardingen (eds.), North Korean Forced Labour in the EU, the Polish case: How the Supply of a Captive DPRK workforce fits our demand for cheap labour, Leiden: LeidenAsiaCentre, 2016; Remco Breuker & Imke van Gardingen (eds.), People for Profit; North Korean Forced Labour on a Global Scale, Leiden: LeidenAsiaCentre, 2018.

[2] The conclusions are substantiated in detail in a chapter forthcoming and to be published by Seoul National University.

[3] This question of accountability also raised and examined in more detail in the report, People for Profit, See Imke van Gardingen, ‘Accountability for DPRK Workers in the Value Chain: The Case of Partner Shipyard, a Polish Shipbuilder and its Dutch Partners’, p. 12-42

[4] The case study on Partner Shipyard and the possible legal routes, is extensively laid out in People for Profit, See Imke van Gardingen, ‘Accountability for DPRK Workers in the Value Chain: The Case of Partner Shipyard, a Polish Shipbuilder and its Dutch Partners’, p. 12-42

[5] See Cedric Ryngaert, ‘Domestic Criminal Accountability for Dutch Corporations Profiting from North Korean Forced Labour,’ in People for profit. p. 201

[6] Judgment of the court of Rotterdam, three-judge economic division for criminal matters, Court of Rotterdam, date of judgment: 15-03-2018, case number: 10/994550-15, p. 1 (translated version)

[7] Ibid., p. 2

[8] Ibid., p. 34

[9] Ibid., p. 35

[10] Ibid., p. 36-37

Editors’ note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague.  She has worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

The Nuremberg Trials were a defining and foundational moment for international criminal law, and the first instance in which the question of international legal responsibility of corporate actors, including natural persons and corporations, was first broached. The Tribunals elected to only prosecute natural persons, however a brief analysis of the reasoning indicates it was political rather than legal considerations that led to this distinction. International law and corporate actors have a storied history that merits drawing the timeline back earlier than Nuremberg. This is the first in a series of blog posts exploring the intersection between corporations and international criminal law (ICL).

As is well known, corporations are not subjected to the Rome Statute and do not fall under the jurisdiction of the International Criminal Court (ICC). Yet, as we will show there have been interesting recent developments at the intersection between ICL and the activities of corporations. In 2014, the Special Tribunal for Lebanon (Al Jadeed S.A.L. & Ms Khayat (STL-14-05)) acknowledged the development of domestic corporate accountability, and determined that ICL has likewise progressed. Meanwhile, cases against individuals (such as the ongoing Lundin case in Sweden) or corporations (such as the Lafarge case in France) involving the activities of corporations abroad have been initiated by national prosecutors on the basis of ICL.

These cases and potential implications will be discussed in more depth in later posts, however it is interesting that while some academics and judges are tracking the ostensibly ‘new’ legal movements to subject corporate activities to greater regulation,^[1] the history of international law itself shows that harmful transnational commerce has been an issue for a long time, and this is not the first time international law has been used as a tool against jurisdiction-hopping corporate crime.

The Nuremberg Trials

The Nuremberg Trials were a mile-stone for individual criminal responsibility under international law, however the Trials’ architects chose not to prosecute juridical persons or companies involved in war crimes. The surface reasoning for this decision was that only individual responsibility was appropriate to attribute criminal wrongdoing, however it seems it was political considerations and a pivot in foreign policy, rather than any clear legal basis, that led to this line being drawn.

The International Military Tribunal (IMT) had a clear intention to reflect the responsibility of German industry and business for exacerbating and profiting from the war, the Nazi regime and its atrocities.[2]^[3] A senior representative of the industrialists Gustav Krupp von Bohlen und Halbach was meant to be indicted in the Trial of the Major War Criminals however he was found unfit to be tried.^[4] Other industrialists were tried in the subsequent Nuremberg proceedings under Control Council Law No. 10:^[5] those prosecuted in the Industrialist Trials were identified by the companies for which they worked: the United States v. Friedrich Flick (Flick), United States v. Carl Krauch (Farben), and United States v. Alfred Krupp (Krupp).

However, as the Tribunal in Farben made clear: “the corporate defendant, Farben, is not before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings. We have used the term ‘Farben’ as descriptive of the instrumentality of cohesion in the name of which the enumerated acts of spoliation were committed… [b]ut corporations act through individuals.”^[6]

This approach by the subsequent tribunals follows that previously taken by the IMT: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”^[7] This quote has been used as authority for the idea that then only individuals can be subjects of international criminal law, however as pointed out by human rights scholar William Schabas, in its broader context the judgement was saying that individuals as well as the state organs are capable of committing crimes: “what they were saying is, ‘we do not have a problem with the idea that the state has committed these crimes, but the individual can commit them as well’.”[8]

Attribution to individuals under international law was not completely new, the possibility was part of Article 228 of the Treaty of Versailles (1919) for example, however the Nuremberg foundation of individual criminal responsibility under international law was “a dramatic leap”^[9] that pierced the screen of state sovereignty, and would become the “cornerstone” of international criminal law.^[10]

Attempting to attribute responsibility among individuals without considering the larger corporate entity led to fragmented responsibility^[11] and issues of attribution in the Farben case, for example; the division of authority within the company was equated with a division of responsibility by the Tribunal.^[12] Responsibility could not be attached to each actor who contributed to an atrocity; wrongdoing was only attributed to those directly engaging with state actors, or engaging in the commission of the crime itself.^[13] This meant that convictions were few, and sentences lenient.

International lawyer and academic Jonathan Bush revisited this question, and determined that the rational for rejecting corporate liability was political, rather than legal:

“[C]orporate and associational criminal liability was seriously explored, and was never rejected as legally unsound [by prosecutors at Nuremberg]. These theories of liability were not adopted, but not because of any legal determination that it was impermissible under international law. Instead, their rejection was the result of the wishes of the occupation governments for handling the corporations and the coincidence that the first defendants tried were companies with the structures of Flick, Krupp and Farben.”^[14]

Corporate liability would have been a major development in international law, but it would have been in good company: “other features of postwar accountability, starting with the idea of an international criminal trial, liability for a head of state, or for crimes against peace, crimes against humanity, or genocide” were all new developments.^[15]

The sentences that were given against convicted industrialists were light: sometimes months or five years rather than a life-sentence or execution. Florian Jessberger is reticent to conclusively draw a link between this mercy and the changing political winds, however he does link it to classic issues of post-conflict justice and the convicted businessmen’s links to American industrialists.^[16] The possible political reasons the Allies had for deciding to ‘go light’ on the industrialists and refraining from pursuing the companies themselves were the re-prioritisation of reconstruction over retribution and the anticipation of future conflict with former-allies the Soviets.^[17]

“At the same time, after the start of investigations and before the conclusion of the Farben trial, American foreign policy was undergoing a turnabout in its attitude to Germany in general and German industry in particular. Under the influence of US Treasury Secretary Henry Morgenthau, the original goal was the ‘industrial disarmament’ of Germany. Later on, in 1945–1946, the US Administration adopted the Truman Doctrine, which sought to refrain from severe reprisals against the industrialists. German industry was not to be ‘purged’; it was to be recruited in view of the new communist enemy coming up on the horizon.”^[18] 

The political dimensions that shaped the Nuremberg prosecutions of corporate-affiliated actors are not a strong basis on which to determine that liability is not possible for corporations or legal persons under international criminal law.

State-focussed narratives of international law have excluded the fundamental roles transnational commerce and companies have played as subjects and propellers of international law. To explore the history of the relationship between commerce, corporate actors and international criminal law, another point of international law development will be briefly addressed: the nineteenth-century anti-slavery international courts.

Antislavery courts

The origin of contemporary international criminal law is commonly traced back to Nuremberg, during which corporate actors were prosecuted for their involvement in war crimes for commercial gain, however research by authors like J.S. Martinez has revealed the nineteenth century origins of subjecting commercial actors to law in the fascinating history of the slave trade tribunals.^[19] These mixed international tribunals arguably were the origin of modern ICL,^[20] as bilateral and multilateral treaties were enforced in courts in multiple jurisdictions following the capture of slave ships flying particular flags.

The abolition movement in Britain led to British naval power being used to ‘chase down’ slave trading vessels flying the flags of other combatants throughout the Napoleonic wars.^[21] Following British victory, virulent protests and petitions of the English populace forced the government to incorporate abolition clauses in the post-war treaty, not only with the French but also in treaties with Atlantic maritime powers Spain, Portugal, the Netherlands, and eventually America.^[22] By the 1840s, international treaties abolishing the trade had been signed by more than twenty nations.^[23] Of these, some of the bilateral treaties incorporated international enforcement mechanisms: the Netherlands, Portugal and Spain signed agreements with the British that involved prospective jurisdiction.^[24] As a result, courts were set up in Freetown, Sierra Leone; Havana, Cuba; Rio de Janeiro, Brazil; and in Suriname.^[25] They were presided over by mixed panels (British and the other treaty power) of commissioners or judges, and disagreements between these settled by arbitrators.^[26] This was well before the establishment of the first Permanent Court of Arbitration in 1899, or the Permanent Court of International Justice in 1921. 

Jurisdiction was the main point of contention in these cases (a story familiar to those studying corporate liability today).^[27] The nationality of the ‘ship’ was used to establish jurisdiction,^[28] as is standard practice for law of the sea, however slave trading vessels were able to strategically swap flags as necessary, meaning that blanket abolition by all sea-faring nations was necessary; eventually, there were no flags left for slavers to hide behind.^[29] In these circumstances, the subjects of international law were the ships themselves, and the personal liability or nationality of the captain was immaterial to the proceedings except as it pertained to the nationality of the ship. Once the ship’s nationality was determined as falling within the jurisdiction of the tribunal, this was typically dispositive, and resulted in condemnation of the ship if it was evident it was engaged in the slave trade.^[30] The slavers themselves were sometimes then sent to their home jurisdiction to face criminal trial.^[31]

There are some interesting points here: mainly, that international law and coordinated legal mechanisms proved a necessary response to a transnational commercial harm. To draw the line between a physical ship as the bearer of liability and a company’s corporate form today would be a slight stretch, however the case does illustrate how international law may capture commercial misconduct beyond domestic jurisdictional reach. Martinez agreed with this extrapolation, arguing that the “centrality of private transnational actors” to this history of international law “highlights the possibility of making international legal mechanisms a more central tool for addressing… violations by private actors today.”^[32]

Conclusion 

By drawing the timeline backwards to this point, rather than beginning the story at Nuremberg, the scope and purpose of international law as a mechanism of pursuing transnational crimes slightly changes. It would now seem a much more natural logical step that a corporate entity operating outside the territorial reach of the country whose flag it ‘flies’ may be subject to international criminal law.

Nuremberg is commonly presented as the beginning of subjecting corporate actions to scrutiny under international law, however the case of the anti-slavery tribunals demonstrates that this kind of liability existed before, and reminds that perhaps current issues of corporate power merit reconsideration of the ICL liability of legal persons. In the next post, the next chapter will be discussed: the drafting of the Rome Statute to explicitly exclude non-natural persons (and consequently, subjection under the International Criminal Court).

^[1] Caroline Kaeb, ‘The Shifting Sands of Corporate Liability under International Criminal Law’ (2016) 49 The Geo Wash Int L Rev 351, 354.

[2] For an in-depth analysis of business involvement, see Annika van Baar, ‘Corporate involvement in the Holocaust and other Nazi crimes’ in J van Erp, G Vanderwalle and W Huisman (eds), The Routledge Handbook of White-Collar and Corporate Crime in Europe (Routledge 2015) 133.

^[3] Doreen Lustig, ‘Three Paradigms of Corporate Responsibility in International Law: The Kiobel Moment’ (2014) 12 Journal of International Criminal Justice 593, 602.

^[4] T Taylor, ‘Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under Control Council Law No. 10’ (Government Printing Office, 1949), 22.

^[5] Allied Control Council Law No. 10 of 20 December 1945 - Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (Amtsblatt of the Control Council in Germany, No. 3, 31 January 1946)

^[6] IG Farben, Vol. VIII, at 1153.

^[7] IMT, judgment of 1 October 1946, in The Trial of the German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, Pt 22 (1950), 447.

[8] ‘Discussion’ (2008) 6(5) Journal of International Criminal Justice 947, 964.

^[9] C. Tomushcat, ‘The Legacy of Nuremberg’ (2006) 4 Journal of International Criminal Justice 830, 833.

^[10] Ibid 840.

^[11] Doreen Lustig, ‘The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Franz Neumann’s Behemoth at the Industrialist Trials’, (2011) 43 New York University Journal of International Law and Politics 965, 1036.

^[12] Ibid 1035.

^[13] Ibid.

^[14] Jonathan A Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said’ (2009) 109 Colum L Rev 1094, 1239.

^[15] Ibid.

^[16] Florian Jessberger, ‘On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial’ (2010) 8(3) Journal of International Criminal Justice 783, 783. 

^[17] Lustig (n 3) 602.

^[18] Jessberger (n 16) 783.

^[19] JS Martinez, ‘Antislavery Courts and the Dawn of International Human Rights Law’, (2008) 117 Yale Law Journal 550, 550.

^[20] Florian Jessberger ‘Corporate Involvement in Slavery and Criminal Responsibility under International Law’ (2016) 14(2) Journal of International Criminal Justice, 327, 328

^[21] Martinez (n 22) 566.

^[22] Ibid 569.

^[23] Ibid 556.

^[24] Ibid 577.

^[25] Ibid 579.

^[26] Ibid.

^[27] Ibid 587.

^[28] Ibid 583.

^[29] Ibid 609.

^[30] Ibid 590.

^[31] Ibid 591.

^[32] Ibid 633.