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 South African Constitution provides in Chapter Nine for the creation of several institutions meant to strengthen constitutional democracy. The South African Human Rights Commission (SAHRC) is one of these institutions. Its constitutional mandate grants it authority to promote, protect, monitor and investigate non-compliance with human rights in South Africa (see s.181 (1) (b) jo. s.184 (1)-(4)). Alongside this constitutional basis, the SAHRC enjoys a legislative mandate in that it was established by the Human Rights Commission Act No 54 of 1994. This act was later repealed by the South African Human Rights Commission Act No 40 of 2013 (‘the Act’), which entered into force on 5 September 2014 and which currently governs the Commission jointly with the constitution. This act details the Commission’s functions and powers in sections 13 and 14. The SAHRC is empowered to make recommendations to state organs for the adoption of measures for the promotion and observance of human rights, undertake studies, request information, develop and conduct educational programmes, review and propose government policies and legislation relating to human rights, monitor implementation and compliance, and undertake investigations into allegations of human rights violations inter alia (see s.13 and 14 of the Act). The SAHRC is based in Johannesburg but it has regional offices in the other eight South African provinces as well.

This article analyses two types of action in order to observe the extent to which the SAHRC 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 South African Human Rights Commission has adopted a far-reaching and comprehensive approach to both direct and indirect participation in the provision of access to remedy.

As to direct participation, the SAHRC’s mandate to receive, investigate and provide redress for human rights violations is governed both by the constitution and the Act. Section 184 (1) (b) of the Constitution dictates that the Commission must promote the protection of human rights while Section 184 (2) (a)-(b) states that it has powers to investigate and to take steps to secure appropriate redress where human rights have been violated. The Act further details that the Commission may resolve any dispute or rectify any act or omission emanating from or constituting a violation of or threat to any human rights (see s.14 (a) and (b)). It can do so by mediation, conciliation or a negotiation endeavour. The SAHRC published its updated complaints handling procedures on 1 January 2018. These reaffirm the Commission’s broad mandate in that they state that the SAHRC is competent to investigate any alleged violation of human rights whether upon receipt of a complaint or ex officio (see Article 3 (1)). Complaints may treat businesses as the offender without limitations as to the type of company or violation. The SAHRC may also institute legal proceedings in its own name or on behalf of a person or a group or class of persons (see s.13 (3) (b)). The case load of the Commission averaged 4633 complaints per year between 2012/13 – 2016/17 (see Table 1).

Under the UNGPs, NHRIs are supposed to offer an alternative to instituting legal proceedings. This is reflected in the practice of the SAHRC, which focuses on alternative dispute resolution (ADR) mechanisms such as mediation, conciliation and negotiation. A trends analysis by the Commission has revealed the fact that ADR mechanisms have a high rate of successful resolution. For the period 2016-2017, 90% of the complaints addressed through ADR mechanisms were successfully resolved (see here at page 42 and 43). For this reason, the SAHRC’s approach to handling complaints relies first on negotiation and conciliation, and, if these fail, the Commission attempts to mediate the matter. Making use of the South African courts becomes in this sense the last resort. Moreover, the Commission has taken a preventive approach to the handling of grievances by conducting targeted investigations on systemic issues (see, e.g., the SAHRC’s national hearing on the underlying socio-economic challenges of mining-affected communities in South Africa). This extensive report does not only identify and analyse the underlying issues, but it also includes concrete recommendations as to what stakeholders could do to ensure access to remedy. For instance, the report states that it is worrisome that some mining companies do not have complaint monitoring and resolution mechanisms in place as per the UNGPs (see the Report on page 79). This practice resonates with the vision for NHRIs under the UNGPs, which note that gaps in the provision of remedy could be filled by mediation-based, adjudicative or other culturally appropriate and rights-compatible non-judicial mechanisms. Alongside its complaints procedure, the Commission further promoted access to remedy by acting as an amicus in various business and human rights cases (see for instance the case of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others).This, paired with its far-reaching complaints mechanisms, shows that the SAHRC plays a much wider role than the Dutch NHRI in providing direct  access to remedy for victims of business-related human rights abuses.

As to indirect participation, the South African Human Rights Commission is mandated to promote respect for human rights, monitor and assess the observance of human rights, carry out research and educate inter alia. In terms of business and human rights, the Commission has comprehensively grappled with these duties. The SAHRC participated in multiple international conferences devoted to discussing the role of NHRIs in the field of business and human rights. For instance, the Commission was one of the institutions that participated in the Global Alliance of NHRIs’ 2010 conference on the role of NHRIs in business and human rights. Similarly, in 2011 the Commission participated in the Network of African NHRIs in business and human rights, which resulted in the Yaoundé Declaration. This affirmed the collective commitment of NHRIs to strengthen their capacity on business and human rights and to address related human rights abuses. Nationally, the SAHRC carried out multiple awareness raising and educational initiatives. These include the hosting of the 2013 Business and Transparency Forum, the 2015 roundtable discussion on ‘Children’s Rights and Business Principles’, the 2016 conference ‘Access to Justice: Creating Access to Effective Remedies for Victims of Business Related Human Rights Violations’, and the 2018 ‘Business and Human Rights Dialogue’. The SAHRC focused on business and human rights as a key strategic focus area both in 2014-2015 and 2015-2016 (see here at page 10). In March 2015, the SAHRC together with the Danish Institute for Human Rights published the ‘Human Rights and Business Country Guide for South Africa’, a highly comprehensive guide tackling all aspects of this field in South Africa. This guide notably includes information under each rights area about the remedy mechanisms available to redress violations and how these mechanisms can be bettered. In sum, the SAHRC’s indirect participation in the provision of access to remedy is quite extensive. It has been undertaking capacity-building exercises, educational programmes and it has established itself at the forefront of the business and human rights field in South Africa.

In conclusion, the South African Human Rights Commission has fully assumed the role envisioned for it under the UNGPs. As an NHRI, the Commission provides a holistic complaints procedure that functions on the full spectrum of human rights and regardless of the type of company. Alongside this, it has undertaken numerous educational programmes, published reports and conducted awareness raising initiatives that have shone a light on business-related human rights abuses in South Africa.

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

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

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

The remediation initiatives in the Bangladeshi RMG sector

The Accord

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

The Alliance

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

The National Initiative

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

The Assessment

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

Governance Structure

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

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

Transparency

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

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

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

Binding Enforcement

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

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

Conclusion

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

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

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

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

[3] ibid., 21.

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

[5] ibid., 15.

[6] ibid., 23.

[7] ibid.

[8] ibid., 24,25.

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

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

[11] ibid., 8.

[12] ibid., 11.

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

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

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

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

[17] ibid., Article 5.

[18] ibid., Article 22.

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

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

Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.

Background

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

Introduction

Part 1 of this three-part blog series gave an overview introduction to the proposal for international business and human rights arbitration. Part 2 focused on the potential advantages of using international arbitration to resolve such disputes, as well as the substantial challenges the proposal will face in practice. This Part 3 now provides a case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process. More particularly, it will provide (1) a brief background to the Accord on Fire and Building Safety in Bangladesh, as well as (2) an analysis of its binding arbitration process, before (3) discussing the arbitrations brought by IndustriALL Global Union and UNI Global Union against two global fashion brands under the Accord on Fire and Building Safety in Bangladesh.

1.     Background to the Accord on Fire and Building Safety in Bangladesh

The Accord on Fire and Building Safety in Bangladesh (the Accord) is a five year independent, legally binding agreement between global brands, retailers and trade unions created in the immediate aftermath of the Rana Plaza building collapse, which led to the death of more than 1,100 people and injured over 2,000. Its purpose is to create a safe and sustainable Bangladeshi Ready Made Garment Industry in which no textile worker need fear fires, building collapses or other accidents that could be prevented with reasonable health and safety measures. The Accord was signed on 15 May 2013 and in June 2013 an implementation plan was agreed, leading to the incorporation of the Bangladesh Accord Foundation in the Netherlands in October 2013. The agreement notably consists of six key components:

• A five year legally binding agreement between brands and trade unions to ensure a safe working environment in the Bangladeshi Ready Made Garment Industry.
• An independent inspection program supported by brands in which workers and trade unions are involved.
• Public disclosure of all factories, inspection reports and corrective action plans.
• A commitment by signatory brands to ensure sufficient funds are available for remediation and to maintain sourcing relationships.
• Democratically elected health and safety committees in all factories to identify and act on health and safety risks.
• Worker empowerment through an extensive training program, complaints mechanism and right to refuse unsafe work.

To date, the Accord has been signed by over 200 apparel brands, retailers and importers from over twenty countries in Europe, North America, Asia and Australia, as well as two global trade unions, eight Bangladesh trade unions and four non-governmental organisation witnesses. As of October 2017, the Accord’s inspectors have identified thousands of safety hazards, but nearly 80% of workplace dangers discovered in the original round of inspections have been remediated whilst over 600 factories have completed 90% or more of the necessary remediation works.

In June 2017, a second term was agreed for the Accord which will enter into effect when the current agreement ends in May 2018 (the 2018 Accord), expiring in 2021. The concept is then for the work to be handed over to a national regulatory body, supported by the International Labor Organization, to be carried forward from that point.

2.     The Accord on Fire and Building Safety in Bangladesh’s binding arbitration process

Article 5 of the Accord contains the agreement’s dispute resolution mechanism, which includes appeal to a final and binding arbitration process. It states that:

“Any dispute between the parties to, and arising under, the terms of this Agreement shall first be presented to and decided by the SC [Steering Committee], which shall decide the dispute by majority vote of the SC within a maximum of 21 days of a petition being filed by one of the parties. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006)”.

A number of critiques have been levied of this arbitration mechanism. For instance, Roger Alford highlighted that the mechanism contains no governing law clause and no seat of arbitration. Accordingly, if a party were to refuse to arbitrate then there is no evident national court in which the claimant might file a motion to compel arbitration. Additionally, although reference is made to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985, no specific arbitration rules are selected. Another constraint is that only disputes arising under the terms of the Accord are subject to arbitration, which may restrict the mechanism’s scope to breach of contract and potentially exclude disputes relating to third-party injuries. The article also appears on one reading to limit arbitration to an exclusively appellate function, with the arbitral tribunal only able to review the Steering Committee’s decision for legal or factual errors as opposed to considering the case afresh. Finally, whilst arbitration awards rendered following an appeal of the Steering Committee decision are subject to enforcement under the New York Convention, there is no stated procedure for directly enforcing the Steering Committee decision and creating binding obligations for the parties without recourse to arbitration.

Article 3 of the 2018 Accord contains some notable alterations to the agreement’s dispute resolution mechanism, stating that:

“Any dispute between the parties to, and arising under, the terms of this Agreement shall be presented to and decided by the SC.

The Steering Committee shall adopt a revised Dispute Resolution Process (DRP) to specify the timelines and procedures involved when disputes are presented to the SC, with the aim to 3 establish a fair and efficient process. The decision making process of the SC shall be supported by a member of Accord secretariat who will perform an initial investigation for the parties and present facts and their recommendations.

The DRP will also incorporate the opportunity for parties to participate in a mediation process in order to make arbitration unnecessary where there is no resolution of the dispute by the SC. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Arbitration Rules (as in its last revision) unless otherwise agreed by the parties. The arbitration shall be seated in The Hague and administered by the Permanent Court of Arbitration”.

By specifying a seat in The Hague and administration by the Permanent Court of Arbitration, the 2018 Accord’s dispute resolution article addresses the previous Accord’s silence on arbitral institution and seat of arbitration. It notably also incorporates a mediation process into the dispute resolution mechanism, providing parties with an alternative to arbitration proceedings. However, a number of lacunas remain in the 2018 Accord’s dispute resolution mechanism, leaving questions as to the practical implementation of its binding arbitration process.

3.     IndustriALL Global Union and UNI Global Union’s arbitrations against two global fashion brands under the Accord on Fire and Building Safety in Bangladesh

In July and October 2016, IndustriALL Global Union and UNI Global Union, non-governmental labour organisations based in Switzerland, commenced arbitrations against two global fashion brands under the Accord and the UNCITRAL Arbitration Rules 2010. The claims include that the fashion brands failed to compel suppliers to remediate facilities within the Accord’s deadline and negotiate commercial terms to make it financially feasible for their suppliers to cover the costs of remediation. The Claimants sought a declaration that the fashion brands violated their Accord obligations alongside a contribution to remediation costs.

Subsequently, the Parties in both PCA Case No. 2016-36 and PCA Case No. 2016-37 agreed that while remaining formally distinct, the two cases would be heard by the same tribunal. The Parties agreed that the seat of the arbitrations would be The Hague, with the Secretary-General of the Permanent Court of Arbitration acting as appointing authority. The Tribunal, composed of Professor Hans Petter Graver, Mr Graham Dunning QC and presiding arbitrator Mr Donald Francis Donovan, was formally constituted on 3 February 2017.

The Tribunal issued its Procedural Order No. 1 on 19 April 2017 which dealt with, amongst other matters, the complex issues of transparency and confidentiality discussed in Part 2 of this blog series. Clause 15 of Procedural Order No. 1 notably cited the UNCITRAL Arbitration Rules 2010 for authority that:

• Any hearing would be held in camera unless the parties agreed otherwise (article 28(3)).
• Any award would be made public only with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority (article (35(2)).

Accordingly the Tribunal confirmed its direction that all details of the proceedings, including that they were pending, be kept confidential pending an agreement or ruling on confidentiality.

The Respondents raised challenges to the admissibility of the claims on the basis that the pre-conditions to arbitrate under Article 5 of the Accord had not been met, and even questioned the Article’s validity as a mechanism to arbitrate. They further argued that because the deadlocked Steering Committee did not produce a majority decision, there was no final decision which could be appealed to a final and binding arbitration process. The Respondents also argued that the term ‘appealed’ in Article 5 of the Accord expressed a clear and unambiguous intent to limit a tribunal’s role to that of an appellate body, providing simply an additional layer of scrutiny as opposed to a de novo appraisal.

Subsequently on 4 September 2017, the Tribunal issued Procedural Order No. 2 containing its Decision on Admissibility Objection and Directions on Confidentiality and Transparency. The Tribunal unanimously rejected the Respondents’ interpretation, finding that the pre-conditions to arbitrate had indeed been met. It found that the Steering Committee “went through a deliberative process and arrived at a ‘decision’ for each charge within the meaning of Article 5” of the Accord. The Tribunal pointed to the “pointless consequences” that would arise from following the Respondent’s argument that the claims were inadmissible due to the deadlocked Steering Committee, explaining that:

• “At this point, there is nothing further that the Claimants could do to pursue their petition except to refile it with the Steering Committee. But that body has already given it the consideration contemplated by Article 5. Hence, the only way to release the petition from Steering Committee limbo would be for one of the union or brand representatives – presumably here, one of the union representatives – to ‘cross the floor’ and vote to reject it, which would then produce the majority vote that the Respondents contend is the condition to invoking arbitration. The Accord signatories could not have intended to promote that kind of gamesmanship as the only way to access arbitration in the event of an evenly divided Steering Committee. Equally, they could not have intended to deny a claimant access to arbitration in the event of a tie but make it available if the claimant lost by a majority or unanimous vote”.

It also emphasised that the term ‘appealed’ on its own did not bring any limitation to a body’s scope of review. Rather, the Tribunal held that particularly given the “non-legal, industry-based character of the first level of decision-making” by the Steering Committee, “there is every reason to believe that the Accord signatories considered that the ‘arbitration’ to which that initial decision could be ‘appealed’ would involve the full fact-finding and law-deciding authority of standard arbitral processes”.

The Tribunal accordingly held the claims admissible and within its jurisdiction. The Permanent Court of Arbitration’s press release noted that the case would proceed to a merits phase, with hearings scheduled for the first half of 2018.

The Tribunal also issued directions on confidentiality and transparency. It noted the particularity of the case, as neither “a classic ‘public law’ arbitration” involving a State nor a “traditional commercial arbitration” between private parties. In its deliberations, the Tribunal accounted for the interest in the Accord from the public, numerous signatories and other stakeholders, but also the need to protect the business information and reputational interests of the fashion brands. To strike a balance between these competing interests, the Tribunal ordered that some basic information about the arbitration’s existence and progress be disclosed but that the identity of the Respondents be kept confidential. Pursuant to a protocol developed in consultation with the Parties, redacted copies of certain documents might be published, including awards, decisions and orders of the Tribunal.

In relation to one of these two Accord arbitrations, on 15 December 2017 IndustriALL Global Union announced that the Parties had reached a settlement agreement. The settlement will ensure that the fashion brand’s supplier factories are remediated and that substantial funds are available for that remediation work consistent with the Accord.

Conclusions

The Accord on Fire and Building Safety in Bangladesh represents a ground-breaking accountability structure and, despite its notable deficiencies and uncertainties, its arbitration process provides a binding enforcement mechanism unique in its resolution of human rights disputes. The arbitrations brought by IndustriALL Global Union and UNI Global Union under the Accord presented the first tests of this mechanism. The Tribunal’s unanimous decision in holding the claims admissible bolstered its credibility, whilst it also acknowledged the challenges arising when adjudicating on disputes of a hybrid nature involving public interests and private concerns. The Accord’s binding arbitration process, as well as the ongoing arbitration proceedings, will undoubtedly be of significant interest to the business and human rights community as a promising example of an alternate means to resolve business and human rights disputes. The working group and drafting team must both reflect and build upon the Accord’s arbitration process as they seek to create strong, binding rules for arbitrating business and human rights disputes.

Slavery has long been banished by law in Europe (since 1863 in The Netherlands), but it has not disappeared from the face of this earth, nor apparently from the territory of the European Union. Thus, a recent report by the Leiden Asia Centre (under the coordination of Prof. Remco Breuker and Imke van Gardingen) showed how workers from North Korea were brought to Poland in order to work in slavery-like conditions for the shipbuilding industry there. In coordination with the researchers, a team of journalists shot the documentary Dollar Heroes on North Korean workers around the globe which will be shown at the end of the event. It will be preceded by a panel discussion on the legal accountability of a Dutch shipbuilding firm which ordered and controlled the construction of ships in the polish shipyards where North-Korean workers were active. Indeed, in November 2018, a North-Korean worker lodged a criminal complaint with the Dutch prosecutor’s office against the Dutch firm. This case raises important questions on the potential criminal liability of corporations for instances of slavery inside their transnational supply chains.

Programme
15:00 - 16:30 – Panel discussion on the criminal liability of Dutch shipbuilders for the exploitation of North Korean workers in Polish Shipyards:

•        Imke van Gardingen (FNV)
•        Barbara van Straaten (Prakken d’Oliveira)
•        Prof. Cedric Ryngaert (Utrecht University)
•        Prof. Remco Breuker (Leiden University)
•        Antoine Duval (Asser Institute) - Moderator

16:30 – 18:00 – Showing of Dollar Heroes followed by a Q&A with Sebastian Weis (Vice) and Prof. Remco Breuker (Leiden University)

Please register HERE!

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

The UNGPs second pillar, the corporate respect for human rights, is built around the concept of human rights due diligence (HRDD). Since 2011, following the resounding endorsement of the UNGPs by the Human Rights Council, it has become clear that HRDD constitutes a complex ecology of diverse practices tailored to the specific context of a particular business. The UNGPs are not legally binding and there is no institutional mechanism in place to control how they are to be translated into practice by the companies that purport to endorse them. Nonetheless, numerous companies and regulatory schemes have embraced the idea of HRDD (such as the OECD Guidelines, the French law on the devoir de vigilance, the UK and Australian modern slavery laws and the Dutch Agreement on Sustainable Garment and Textile). 

The operationalisation of HRDD has been shaped over the past 8.5 years by a variety of actors, including international organisations, consultancies and audit firms, as well as non-governmental organisations. These actors have conducted research and developed various methodologies, instruments and tools to define what HRDD is and what it entails in order to assist or influence businesses in its operationalisation. The interpretation of the requirements imposed by HRDD process outlined in the UNGPs is open to a variety of potentially contradictory interpretations. This pluralism is well illustrated by the diversity of actors involved in an ongoing struggle to define its scope and implications.

This second blog of a series of articles dedicated to HRDD looks at it through the lens of the most influential players shaping HRDD in practice by examining their various perspectives and contributions to the concept. Case studies will then be undertaken to look at how HRDD has materialised in practice in specific companies. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect for human rights by businesses.

The UN’s Authoritative Contributions to the Meaning of HRDD

The OHCHR’s Interpretive Guide to the HRDD

Acknowledging that the immediate challenge of the UNGPs is effective implementation, the Office of the High Commissioner of Human Rights (OHCHR) released The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (OHCHR Guide). It seeks to provide additional background explanation to the corporate responsibility to respect human rights in order to support a full understanding of their meaning and intent. It is thereby clear that the OHCHR recognises that the UNGPs require clarification in order to be properly implemented by business. While the OHCHR Guide states that it does not intend to change or add to the UNGPs, or to provide operational guidance on implementing the respect for human rights by business in practice, it does in fact contribute to the practical operation and reach of HRDD. It attempts to narrow down the meaning of open-ended aspects of the UNGPs and provide context and explanations of concepts and ideas referred to in the UNGPs that require further clarification.

The OHCHR Guide takes the approach of answering a series of questions that are likely to be asked by a range of stakeholders, including business, on a principle-by-principle basis. It provides guidance on the concept of HRDD in and of itself, as well as on each step of the HRDD process. Therefore, it seeks to answer the questions of how, when, what with respect to HRDD and the process it entails, which is missing in the UNGPs themselves, in an attempt to guide business in implementing corporate respect for human rights. Notably, the OHCHR Guide defines HRDD in the context of the UNGPs as ‘an ongoing management process that a reasonable and prudent enterprise needs to undertake, in the light of its circumstances (including sector, operating context, size and similar factors) to meet its responsibility to respect human rights’. Prior to this, the meaning of the concept had never been clearly set out. Importantly, it discusses why HRDD actually matters, namely, to assist businesses to identify the human rights risks specific to their business at a point in time and the actions they need to take to prevent and mitigate them.

The work of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises

The UN Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group) has contributed to the practice of HRDD by examining the challenges and success stories of businesses in order to ‘contribute to faster progress’ in the realisation of HRDD. The Working Group was established shortly after the UNGPs were endorsed. It has a broad mandate, which includes promoting the effective and comprehensive dissemination and implementation of the UNGPs; identifying, exchanging and promoting good practices and lessons learned on the implementation of the UNGPs; and providing support for efforts to promote capacity-building and the use of the UNGPs.

Last year in its report to the General Assembly on the ‘emerging practice and innovations of corporate human rights due diligence across sectors’, the Working Group acknowledged that there are gaps and challenges in current business HRDD practice. In doing so, the Working Group has entered into the interpretative fray and clearly aimed at influencing the scope and depth of HRDD. For example, the Working Group argues that businesses don’t properly understand HRDD in many cases resulting in issues such as the misconstruction of risk and human rights impact assessments becoming a tick box exercise. Further, it identifies that there is generally weak performance with respect to the ‘taking action’ and ‘tracking performance’ aspects of HRDD, and considers that businesses are failing to make the requisite link between HRDD and the remediation of actual human rights impacts.

While the Working Group has not provided a tool per se to assist business to implement HRDD, it usefully compiled a set of cross-cutting aspects of good practice demonstrated by business that can be applied by all businesses regardless of their specific context. Through setting out what it deems to be ‘good practice’ with respect to HRDD, the Working Group has attempted to shape expectations of business under HRDD. As a result, businesses can learn from the actions taken by other businesses that are regarded as successfully implementing aspects of the HRDD concept and its process.

The Working Group emphasises the importance of stakeholder engagement with critical voices, those directly affected by human rights impacts and NGOs during all stages of HRDD and providing greater transparency and meaningful reporting. The Working Group also highlights the importance of extending HRDD beyond tier one suppliers to all suppliers in a business’ value chain and building and exercising leverage by conveying that the business will prevent and address human rights impacts across business relationships wherever they arise. Further, the Working Group encourages businesses to address systemic human rights issues by building collective leverage to address the root causes of those issues.

The OECD’s Contribution

The OECD is a powerful norm-entrepreneur in the struggle to define HRDD. It has played a very productive role in it, creating a number of guidance documents regarding various aspects of the concept. The OECD has incorporated HRDD into the OECD Guidelines for Multinational Enterprises, one of its greatest contributions has been to devise sectoral solutions to issues that arise when businesses conduct HRDD in particular industries.

The 2011 revision of the OECD Guidelines resulted in ‘risk-based due diligence’ being incorporated as a key tool for identifying, preventing and mitigating actual and potential adverse impacts in the areas covered by the Guidelines. The provisions of the OECD Guidelines that address HRDD align with the process set out in the UNGPs. It is significant that HRDD has been included in the OECD Guidelines, as all governments adhering to them are required to establish a National Contact Point, which is, inter alia, a grievance mechanism that resolves matters relating to the non-observance of the OECD Guidelines. As such, it is likely that a sort of non-binding ‘jurisprudence’ will emerge from the workings of National Contact Points on what HRDD entails from the perspective of the OECD and the related expectations on businesses.

Last year the OECD released Due Diligence Guidance for Responsible Business Conduct (OECD Guidance). The OECD Guidance provides practical support to enterprises on the implementation of the OECD Guidelines. The Guidance provides a practical tool for business (rather than theoretical one) focusing on the concrete actions for business to take to align with international HRDD standards (including the UNGPs and OECD Guidelines) and operationalise HRDD. Illustrative examples are provided on how each of the steps in the HRDD process can be approached and carried out.

The OECD has also published a number of other due diligence guidance documents targeting HRDD in the context of particular sectors and operational contexts. Some examples include the OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector, the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. The purpose of these materials is to provide businesses with the tools to implement the due diligence recommendations in the Guidelines in their particular sector, having regard to the sector-specific complexities and challenges that may arise during that process. Therefore, the OECD acknowledges that HRDD is not a straightforward process and different intricacies can arise in implementing the concept based on the industry in which a particular business operates, requiring the process to be tailored to each business.

The role of other actors in the struggle to define HRDD

Shift and Ruggie’s Legacy

Shift, a global consultancy organisation, was created by those who worked closely with Ruggie during his mandate as Special Representative on the issue of human rights and transnational corporations and other business enterprises to establish the UNGPs. The founders of Shift recognised that into order to put the UNGPs into practice, governments, businesses, investors and NGOs needed to take action and a new paradigm needed to be created so that business could be done upon the three pillars of the UNGPs. Shift places a great focus on assisting companies on putting the UNGPs into practice by assisting them to report on their business and human rights practices. It has zeroed in on reporting the UNGPs because it believes that it can be ‘a very powerful driver of improved management’.

Shift together with Mazars, an audit, accounting and consulting group, created the UN Guiding Principles Reporting Framework (Reporting Framework) as a tool to assist businesses to report on human rights issues so that they can align themselves with the UNGP’s responsibility to respect human rights. The Reporting Framework seeks fill the gap between principle and practice through providing a:

global and widely accepted process for companies to demonstrate whether their policies and processes are indeed aligned with the UN Guiding Principles and therefore capable of meeting their responsibility to respect human rights.

The implementation guidance aspect of the Reporting Framework provides a series of questions for companies to self-evaluate their actions in order to ‘know and show’ that it is meeting its responsibility to respect human rights in practice. It provides guidance on how to respond to the questions with relevant and meaningful information. The disclosures of 147 companies under Reporting Framework have been recorded in a database since it was published in 2015, including the likes of Rio Tinto, Unilever, Google and Apple. However, the tool has not necessarily been used by businesses in consecutive years. For example, Rio Tinto has not used the tool since 2016 and Unilever since 2015. Consistency in use of any tool is critical to being able to track a company’s performance in implementing the UNGPs over time. Using the recorded information, Shift has identified various trends and insights on business disclosure.

Shift has also partnered with the Global Compact Network Netherlands and Oxfam to release a guidance tool for companies named ‘Doing business with respect for human rights’ (Guide). The Guide is intended to equip businesses with practical advice and real-life examples that assist with translating the principles set out in the UNGPs into concrete action. With respect each of the core elements of the UNGPs, a series of guidance points are provided so these concepts can be put into practice, along with examples so that companies can learn from practice. Common pitfalls generally experienced by companies are also outlined to assist businesses from falling into these ‘traps’. Interestingly, the Guide was the result of workshops held in Indonesia, Mexico, South Africa and Turkey which brought together civil society stakeholders and businesses for ‘frank sharing of perspectives, challenges and ways forward on ensuring greater business respect for human rights’. As a result, the Guide draws upon these different perspectives and draws on learnings from various practical experiences.

Shift has also provided practical strategies for business in conducting HRDD in high risk circumstances (Shift Guidance). In doing so, it has recognised that certain businesses will face high risks as a result of factors in the broader operational context (e.g. corruption), business relationships, business activities and the presence of vulnerable groups. The Shift Guidance provides a tool to identify a business’ highest risks (i.e. considering the relative weight of risk factors, the presence of meta indicators and the capacity of the business’ management systems), setting out a series of questions for businesses to ask themselves. It also emphasises the importance of engaging both internal and external stakeholders.

Multistakeholder Organisations and HRDD: The Ethical Trading Initiative

The Ethical Trading Initiative (ETI), an alliance of companies, trade unions and NGOs, has also made its own contribution to the concept of HRDD. ETI focuses on promoting respect for workers’ rights globally. ETI has developed its own HRDD Framework (ETI Framework) to help companies meet the corporate responsibility to protect in the labour rights context by preventing and managing labour rights risks that arise in supply chains. The ETI Framework aligns with the ETI’s Base Code, which is a set of internationally recognised labour standards derived from the ILO Conventions and includes, for example, ensuring living wages are paid and working hours are not excessive. It also focuses on workers with the greatest risk of human rights abuses such as children, women and migrant workers.

The focus of the ETI Framework on workers’ rights is clearly evidenced through the stated action items that companies should take in order to satisfy each step. For example, with respect to assessing actual and potential human rights risks, businesses should identify risks to workers by sector, nature of work, type of worker, employment relationships and labour market dynamics and assess workers’ ability to access rights to freedom of association and collective bargaining. While it is clear that the ETI Framework is based on the HRDD process articulated in the UNGPs, it also draws from the OECD due diligence tools and the Reporting Framework discussed above. Accordingly, it is aimed at complementing these frameworks, rather than replacing them.

ETI Norway has also released  ‘A Guide to Human Rights Due Diligence in Global Supply Chains’ (ETI Guide) to assist companies to operationalise HRDD in order to improve working conditions in supply chains. While the ETI Guide is intended to strengthen the role of Norwegian companies in achieving sustainable business practice, it can be applied to companies outside of Norway. The HRDD process outlined in the ETI Guide focuses on how to prevent, mitigate and remedy negative impacts on people working in supply chains, and the local communities in which they live and work, through adopting a risk-based approach. It acknowledges that HRDD needs to account for all players throughout all stages of a supply chain. Success factors for each of these steps are provided to guide businesses on what satisfaction of each step looks like, along with illustrative case studies of Norwegian companies that have successfully carried out HRDD.

Conclusion

HRDD is complex and its practice is being shaped by actors through the development of a variety of overlapping but multifarious administrative tools, reports, guidance documents and guidelines. What is clear is that there are a multiplicity of players weighing in on what exactly HRDD is, what it entails and how it should be implemented and practiced by business. Each of these players has different legitimacies and interests that have influenced their contribution to HRDD – for example the ETI’s contribution to HRDD is mainly focused on workers rights in the labour context.

It is clear that the UNGPs marked the end of the beginning to stopping corporate abuse of human rights. With respect to HRDD, the definition of its practical scope is still subject to ongoing interpretative struggle, with the resulting consequence being that there is a degree of uncertainty as to how businesses should operationalise HRDD. Accordingly, its meaning and impact can be properly understood only in the context of its concrete use, requiring specific case studies of business practice to be examined. The next blogs in this series will carefully examine the practices of businesses that have implemented HRDD in order to understand what HRDD actually does in practice.

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

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

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

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

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

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

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