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    A Lawyer's Guide to Key Business and Human Rights Documents

    These documents provide a working knowledge of the application of international human rights norms to business conduct.

    SECTION I.  KEY BUSINESS AND HUMAN RIGHTS DOCUMENTS

    Introduction

    These Key Business and Human Rights Documents have been selected by the Editorial Board of the Business and Human Rights Initiative of the American Bar Association (ABA) Center for Human Rights.  Their purpose is to help those who seek to obtain a working knowledge of the application of international human rights norms to business conduct.  The origins, development, and current status of business and human rights (BHR) norms are complex and their impacts on multinational business are undergoing rapid changes, inasmuch as efforts to ensure the protection of these norms in supply chains and other business spheres are occurring at multiple levels of government, in civil society, and in the business community.  In many regards, the most challenging role of the lawyer is to assess the momentum and potential of these efforts and to advise their clients as to how they might anticipate future developments that could impact their companies.

    This page is divided into Entries, each dealing with a principal issue involved in today’s discussions of BHR law, its history, and a brief description of current developments.  The Editorial Board will continually add Entries to this site and maintain them on a permanent basis, so that lawyers and other researchers may rapidly find the key BHR-related documents that they will need.  Each Entry is accompanied by heading and a summary of its contents. 

    Unless specified otherwise, the views expressed herein represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. Further, nothing in such documents constitutes legal advice in a specific case. 

    The members of the Editorial Board are:

    • Brian Burkett
    • Douglass Cassel
    • Claes Cronstedt
    • Elise Groulx Diggs
    • Charity Ryerson
    • Martijn Scheltema
    • John Sherman
    • Robert Thompson, Senior Editor

    The biographies of the Board Members and also other contributors of Key Documents appear at Section II, “Biographical Information.”

    The postings of Entries regarding Key BHR Documents as of August 2021 are:

    Entry A.  International Human Rights Norms; their Origin and Past, Present and Likely Future Developments. 

    Edited by Robert Thompson

    The following articles provide the reader with an overall history of the principal international human rights norms and a sense of how the area may develop in the near future.

    A wide-ranging analysis of the original sources of the principal international human rights norms, such as the Geneva Conventions and the Genocide Convention, the mechanics for the incorporation of international norms into domestic laws, the means whereby victims might bring actions, and the numerous obstacles, both legal and practical, that confront victims when attempting to do so.  The article discusses the roles of international courts—such as the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia—and their applications of the international norms and resulting liability for various modes of participation in crimes.  It discusses the issues involved when attempting to apply international norms to “judicial persons” such as corporations and partnerships or penetrate the “corporate veil” so as to reach the parent corporations of subsidiaries involved in breaches.  It assesses the role of the doctrines of forum non conveniens, “act of state,” and other frequently raised defenses to extraterritorial application of a state’s criminal and civil laws.  Finally, the article examines the factors at play when authorities in a state in which a multinational enterprise is located consider taking action against such an enterprise arising out of its foreign conduct.

    This chapter surveys recent trends and the state of the field of international and transnational business and human rights law as of mid-2023.  The chapter covers the “hardening” of norms through national legislation mandating human rights due diligence; national court judgments with transnational effect; court judgments interpreting regional human rights treaties to oblige states to regulate companies to respect human rights; criminal prosecutions of companies and executives for complicity in war crimes and crimes against humanity; restrictions on the import of goods produced in violation of human rights, especially by forced labor; international investment treaties and arbitral awards; and the negotiations to draft a UN treaty on business and human rights.  The chapter also addresses the “broadening” of human rights norms affecting business, mainly through the recognition by the UN General Assembly of the human right to a clean, healthy and sustainable environment.  The chapter concludes that, while the future pace of change is difficult to predict, the confluence of the foregoing legal factors, together with non-legal factors, strongly suggests that overall, the present trends of hardening and broadening of norms on business and human rights will likely continue.

    Entry B.  The United Nations Guiding Principles on Business and Human Rights (UNGPs): Implications for Corporate Legal Practice

    Edited by John F. Sherman, III

    Why the UNGPs Matter for the Practice of Corporate Law—Contextual Note

    I have listed at the end of this note some of the key papers that I would refer to corporate lawyers who want to understand what the 2011 UN Guiding Principles on Business and Human Rights (UNGPs) mean for their legal practice.  This contextual note explains why and how they are relevant.

    The UNGPs

    Because they constitute the authoritative global framework on business and human rights, the UNGPs should be at the center every legal discussion of the respective roles of states and businesses with respect to human rights.  They consist of 31 guiding principles and integrated commentary. 

    The UNGPs rest on three interrelated pillars:

    1. Pillar 1, the state duty to protect human rights from abuse by third parties, including by businesses.  This is a legal duty imposed on states by international treaties and instruments, and is implemented through such means as legislation, investigation, adjudication, and the provision of remedy to victims of human rights abuse.
    2. Pillar II, the business responsibility to respect human rights, which is a nonbinding responsibility reflecting the global expectation that businesses will not respect human rights (that is, not infringe on them) in their operations and their business relationships (including in their value chains).  The responsibility to respect is implemented through an embedded public commitment to respect human rights, combined with a stakeholder-centered process of human rights due diligence.  Human rights due diligence enables businesses to know and show that they are respecting human rights, through identification of their involvement in human rights risks, integrated response to those risks depending on their mode of involvement, monitoring their human rights performance, and being prepared to report on them, particularly to affected stakeholders. 
    3. Pillar III, the need for greater access to remedy, is addressed to both states and businesses.  It reflects the need to reduce barriers to remedy for victims of human rights abuse caused or contributed to by businesses, and includes both judicial and nonjudicial remedy.

    The UNGPs were unanimously endorsed by the UN Human Rights Council in 2011, following extensive multistakeholder consultations, pilot projects, and research.  They were authored by the late Harvard Kennedy School Professor John Ruggie, in his capacity as Special Representative of the UN Secretary General on Business and Human Rights (SRSG). 

    Uptake of the UNGPs

    The UNGPs have become increasingly being reflected or incorporated in law, regulation, multistakeholder international normative standards, the practices and policies of leading companies, private commercial law, judicial and nonjudicial dispute resolution, the guidance of international and national bar associations and legal societies, and the advocacy of civil society.  Indeed, the UNGP process of human rights due diligence has recently been enacted into legislation by France, The Netherlands, and Germany, and is being considered for adoption by the European Union, which is the world’s largest trading block.

    In addition, the last several years have shown an explosive and continuing interest by the financial community and other key stakeholders in Environmental, Social, and Governmental (ESG) factors to predict a businesses’ sustainable performance.  Since the ‘S’ or Social factor, is heavily populated by human rights, alignment by businesses with the UNGPs, which is the authoritative global standard, is critical to ESG investment decisions.  Moreover, the ‘E’ or environmental factor profoundly implicates the company’s respect for human rights.  Indeed, in October 2021 the UN Human Rights Council voted overwhelmingly to recognize the right to a decent environment as a human right.  Finally, as to the ‘G’ or governance factor, a company’s respect for human rights, a company’s ability to respect for human rights, including particularly its human rights due diligence processes, must be integrated into the company’s corporate governance to be effective.

    The UNGPs and the Practice of Law 

    The UNGPs have become highly relevant to the practice of law.  In 2012, the ABA was the first national bar association to formally endorse the UNGPs and urge their integration into legal practice.  The International Bar Association (IBA), Law Society of England and Wales, the Japan Federation of Bar Associations, and the European Federation of Bar Associations, endorsed the UNGPs soon thereafter.  All have provided extensive guidance to their members on how to implement the UNGPs. 

    The Importance of Soft Law Norms 

    As a matter of legal competence, lawyers must be prepared to advise their clients on the UNGPs where they are mirrored in the law.  The enactment of mandatory human rights and environmental due diligence legislation in France, The Netherlands, Germany and Norway, and the consideration of such legislation by the EU.  This legislation has potential implications for all companies, wherever located, that seek to do business in countries that have passed such legislation.  Moreover, human rights due diligence has the strong potential to become a legal duty of care even in countries that have not passed mandatory human rights due diligence legislation.

    Even where the UNGPs are not yet codified into hard law, they are still highly relevant because the violation of soft law norms, such as the UNGPs, can increase the likelihood and severity of legal claims for involvement in human rights abuse.  In its guidance on the UNGPs, the IBA noted that corporate lawyers play at least two roles: technical legal experts, who advise clients on what the law says that they can and cannot do; and wise counselors, who also affirmatively advise their clients on whether to follow soft law norms such as the UNGPs, when doing so serves the businesses’ sustainable interests. 

    The Need for Law Firms to Perform Human Rights Due Diligence

    The IBA also recognized that external law firms are businesses that should exercise human rights due diligence in their own internal operations and in the impact on vulnerable people of their legal services to corporate clients. 

    Like other professional service providers, such as management consultants, to name a few, law firms can cause or contribute to human rights harm by their clients, such as the facilitation of money laundering by foreign kleptocratic rulers of impoverished but resource rich countries, the avoidance of land ownership laws designed to remedy displacement of persons caused by conflict, the avoidance of international sanctions on the use of cluster bombing of civilian targets by governments, or the design and implementation of predatory debt collection practices targeted at the most vulnerable in society, etc. 

    Of course, law firms are bound by professional codes of conduct and by legal requirements of professional confidentiality and independence.  But this does not immunize them from the need to avoid causing or contributing to human rights abuse by their clients.  

    The need for law firms to exercise human rights due diligence with respect to their legal practice is acute as firms rush to set up ESG practices and advise corporate clients on ESG matters, including alignment with the UNGPs.  For such advice to be credible and authentic, it should be based on a true appreciation of how the firm itself can address its own human rights impacts in its provision of legal services. 

    Corporate Legal Officers 

    The UNGPs have a particular relevance for corporate legal officers.  Corporate legal officers are displacing external law firms as the go-to partners of the C-Suite and the Board on managing the business’s strategic risks, including human rights risks. 

    Corporate legal officers are fiduciaries who owe their clients the highest duties of care and loyalty. The duty is owed to the corporation and not to its individual officers.  It includes the duty to act in the affirmative best interests of the company, by preventing and mitigating the corporation’s involvement in human rights abuse. Increasingly, major institutional investors are challenging the view that the only purpose of the corporation is to maximize short term shareholder value regardless of adverse stakeholder impact (including human rights abuse). 

    Corporate legal officers are therefore at the sharp end of the stick when it comes to addressing and trying to harmonize the short- and long-term interests of shareholders and stakeholders. A myopic focus on avoiding legal liability as the primary goal of corporate legal officers misses the forest for the trees; it is likely to interfere with the company’s ability to act in its affirmative best interesting by undertaking effective stakeholder-focused human rights due diligence.  Among other things, a reflexive resort to invoke legal privilege to chill discussion of human rights problems (even where its exercise may be technically justified), can foster a closed corporate culture, in which the company neither assesses nor addresses its involvement in human rights harm. 

    For corporate legal officers, and their external law firms, the right questions to ask clients include both whether a company can assert its legal rights, and also, whether it should do so in the affirmative interests of the corporation, which includes consideration of harm to vulnerable people. For example, in response to supply chain disruptions caused by the COVID-19 pandemic, U.S. and European buyers invoked force majeure clauses to abruptly terminate their supply chain contracts in response to the COVID-19 pandemic, thereby throwing hundreds of thousands of vulnerable people out of work, many of whom had no savings, no social safety net, and who were the sole support of their families.  In many cases, little effort was made to consider or mitigate the human rights impacts of the terminations.

    Creative Lawyering 

    Integration of the UNGPs into legal practice therefore creative lawyering to help companies to better align their legal practices with human rights due diligence.  One recent example is the development by a Working Group of the Business Law Section of the ABA to develop model contract clauses that would shift supply chain contracts from an ineffective and counterproductive, top down compliance regime based on representations of warranties of suppliers not to provide goods tainted with human rights abuse to a more collaborative regime that would be explicitly based on human rights abuse, and treat preventing and addressing abuse as a shared responsibility, consistent with the commercial realities of the contract.  wants an introduction. 

    With this context in mind, here’s my list:

    Essential Readings

    1. UN Human Rights Council, UN Guiding Principles on Business and Human Rights: Implementing the “Protect, Respect, and Remedy Framework” (2011), https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf
    2. UN Office of the High Commissioner of Human Rights (OHCHR), The Corporate Responsibility to Respect Human Rights:  An interpretive Guide (2012), https://www.ohchr.org/en/publications/special-issue-publications/corporate-responsibility-respect-human-rights-interpretive.  The Interpretive Guide was authored by the OHCHR with the full approval of the SRSG. It provides a comprehensive and practical guide to the understanding and application of the second pillar of the UNGPs, which is the responsibility to respect human rights.
    3. Organization for Economic Co-operation and Development, OECD Due Diligence Guidance for Responsible Business Conduct (2018),  http://mneguidelines.oecd.org/OECD-Due-Diligence-Guidance-for-Responsible-Business-Conduct.pdf  In 2012, the OECD revised its voluntary guidelines for multinational enterprises by revising its human rights section and importing the concept of human rights due diligence as used in the second pillar of the UNGPs.
    4. Monash University, Human Rights Translated 2.0:  A Business Reference Guide, prepared in collaboration with the OHCHR, https://www.ohchr.org/Documents/Publications/HRT_2_0_EN.pdf . The SRSG’s research as part of his UN Mandate showed that businesses can adversely impact all internationally recognized human rights.  Accordingly, this Guide provides concrete examples of how businesses can do so.
    5. Report of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises, Guiding Principles on Business and Human Rights at 10: taking stock of the first decade, A/HRC/47/39 (April 22, 2021), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/093/82/PDF/G2109382.pdf?OpenElement

    General Background, Content, and Uptake of the UNGPs

    1. John G. Ruggie, Just Business (Norton, 2013).  This book is the former SRSG’s personal story of his involvement in UN mandate and the drafting of the UNGPs.
    2. John F. Sherman, III, Beyond CSR: The Story of the UN Guiding Principles on Business and Human Rights in Rae Lindsay and Roger Martella (eds.), Corporate Social Responsibility-Sustainable Business: Environmental, Social and Governance Frameworks for the 21st Century (Wolters Kluwer 2020) Ch. 2, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561206

    The UNGPs’ Reflection in, and Incorporation into, Law

    1. Martijn J. Scheltema, Legislative Developments in the European Union Involving Mandated Business and Human Rights Due Diligence (2021), https://www.americanbar.org/groups/human_rights/business-human-rights-initiative/key-business-and-human-rights-documents/ .  These documents (cross posted in Entry E above), discuss developments in EU mandatory due diligence legislation. 
    2. Debevoise & Plimpton, UN Guiding Principles on Business and Human Rights at 10 (2021), commissioned by the UN Human Rights Working Group https://www.debevoise.com/insights/publications/2021/07/un-guiding-principles .  This is the most comprehensive summary to date that examines the reach of the UNGPs on the decisions of judicial and quasi-judicial bodies around the world.

    ESG and the UNGPs

    1. John G. Ruggie and Emily K. Middleton, Money, Millennials and Human Rights: Sustaining ‘Sustainable Investing’ (2019) 10(1) Global Policy https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/working.papers/CRI69_FINAL.pdf.  In this paper, the authors show why and how the UNGPs are highly relevant to ESG investors.
    2. Committee of Sponsoring Organization of the Treadway Commission (COSOO and World Business Council for Sustainable Development (WBSCD), Enterprise Risk Management--Applying enterprise risk management to environmental, social and governance-related risks, (2018), https://bit.ly/3JrpSC9.

    Corporate Governance and the UNGP

    1. John G. Ruggie, Caroline Rees, Rachel Davis, Making ‘Stakeholder Capitalism Work: Contribution from Business & Human Rights, Harvard Kennedy School Working Paper No. 76 (2020), p. 11, https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/files/CRI_WP76.pdf
    2. John F. Sherman III, Human Rights Due Diligence and Corporate Governance, to be published in ABA Guide to Human Right Due Diligence (forthcoming in 2022), early draft available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3862624 .

    Corporate Reporting and the UNGPs

    1. Shift and Mazars UN Guiding Principles Reporting Framework (2017), https://shiftproject.org/resource/un-guiding-principles-reporting-framework/ .  This is the first comprehensive reporting framework that is focused on the internal understanding and external reporting of a company’s human rights performance under the UNGPs.   It is used by over 150 major multinational publicly traded companies, and is backed by governments, investor coalitions with approximately USD $5.3 trillion assets under management, investors, stock exchanges, law firms, and other reporting initiatives.

    The Legal Profession and the UNGPs

    1. International Bar Association, IBA Practical Guide on Business and Human Rights for Business Lawyers (2016), https://www.ibanet.org/LPRU/Business-and-Human-Rights-for-the-Legal-Profession  .  
    2. John F. Sherman, III, The Corporate General Counsel Who Respects Human Rights (2021), https://www.tandfonline.com/doi/full/10.1080/1460728x.2021.1979731.
    3. Ben W. Heineman, Jr., William F. Lee, David B. Wilkins, Harvard Law School Center for the Legal Profession, Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century (2015), https://www.belfercenter.org/sites/default/files/files/publication/Heinemen_Lawyers%20as%20Professionals.pdf .  In this widely cited report, the authors discuss the roles of corporate lawyers as technical experts, wise counselors and leaders. 
    4. Anita Ramasastry, Advisors or Enablers? Bringing Professional Service Providers into the Guiding Principles’ Fold, Business and Human Rights Journal , Volume 6 , Issue 2 , June 2021 , pp. 293–311, https://www.cambridge.org/core/journals/business-and-human-rights-journal/article/advisors-or-enablers-bringing-professional-service-providers-into-the-guiding-principles-fold/D8E3DA1860530F7A232DAFFC9C3BA89E.  In this article, the author discusses the critical need for law firms and other professional service providers to perform human rights due diligence with respect to their professional services, in order to avoid causing (or more likely) contributing to human rights abuse by their clients.  The author calls on the profession to begin to engage in “creative lawyering” to enable their corporate clients to better align their business with the UNGPs.

    Legal Practice and Human Rights Abuse in Supply Chains

    1. John F. Sherman, III, Irresponsible Exit: Exercising Force Majeure Provisions in Procurement Contracts, Business and Human Rights Journal, V. 6 (2020), draft available at https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/programs/cri/files/wp_77_Irresponsible%20Exit.pdf.
    2. Working Group of the Business Law Section of the ABA, Balancing Buyer and Supplier Responsibilities:  Model Contract Clauses to Protect Workers in International Supply Chains, Version 2.0 (2021), Contractual Clauses Project, https://www.americanbar.org/groups/human_rights/business-human-rights-initiative/contractual-clauses-project/

    Entry C:  Section 307 of the Tariff Act of 1930

    Edited by Charity Ryerson

    The US has been at the forefront in preventing entry of goods produced with forced labor, but in recent years, other jurisdictions have begun implementing similar bans. In the US, Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307) provides that goods made in whole or in part with the use of forced labor, including forced child labor may be prohibited from being imported into the United States. The Uyghur Forced Labor Prevention Act  (Public Law No. 117-78) (UFLPA), which came into effect on June 21, 2022, built upon this framework, establishing a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of China, or by an entity on the UFLPA Entity List, were produced with forced labor, in violation of Section 307. More recent bans in Canada, the EU and Mexico are at varying stages of implementation. The following publications provide an introduction to each of these laws:

    1. Congressional Research Service, Section 307 and U.S. Imports of Products of Forced Labor: Overview and Issues for Congress (2021). This report provides a background analysis of Section 307 and Customs and Border Protection (CBP) processes, trends regarding its use, and key issues for Congress regarding Section 307 enforcement and U.S. trade policy. It gives an overview of the application of Section 307 and the responsibility of importers. In addition, it highlights the issue of forced labor in Xinjiang and the U.S. free trade agreements and trade programs that constrain forced labor practices.
    2. Customs and Border Protection, U.S. Customs and border protection operational guidance for importers (June 2022). This document provides guidelines on the application and operations of the UFLPA and gives CBP’s interpretation of its provisions. It points out the importation process and enforcement, how to request an exemption to the rebuttable presumption, and the types and nature of the information that CBP may require during these processes.
    3. Testimony of Martina E. Vandenberg, Subcommittee on Trade Hearing: Modernizing Customs Policies to Protect American Workers and Secure Supply Chains (May 2023). The testimony before the U.S. Congress by the president of the Human Trafficking Legal Center addresses the need for U.S. trade allies and partners to adopt forced labor import bans, the need for robust U.S. enforcement of Section 307 and the UFLPA. The testimony also provides insights into the need for more transparency in customs data and amendment of the law on de minimis shipments.
    4. Report to Congress, Updates to the Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China (July 2023). These reports are prepared annually pursuant to Section 2 of the UFLPA. The report provides updates on the evaluation and description of forced labor schemes, as well as entities on the UFLPA List, additional UFLPA strategy, and an overview of additional resources necessary to ensure no goods produced with forced labor enter the U.S.
    5. Jennifer Gordon, The US Forced Labor Import Ban as a Tool to Raise Labor Standards in Supply Chain Contexts: Strategic Approaches to Advocacy (2024).   This article examines the challenges and opportunities that labor and human rights advocates and trade unionists have faced in applying Section 307 while challenging the violations of workers’ rights in the global supply chains. The paper offers a framework for strategic approaches to Section 307, focused on leveraging the Section 307 framework to build worker power.
    6. Workers Rights Consortium, Scott Nova's testimony before the Congressional-Executive Commission on China (April 2024). This testimony highlights the failures and obstacles of social auditing that global brands and retailers conduct and how the same will impact the effective implementation of UFPLA. It assesses the validity of auditing and certification schemes, especially in Xinjiang, and the capacity to conduct reliable workplace audits across the rest of China. In addition, the testimony points out the conflict of interest in social auditing and certification mechanisms between the auditing bodies and the global brands. Nova provides recommendations that can be used to verify and ascertain the reliability of the social audits and certifications conducted by Global brands and audit firms in Xinjiang and the rest of China.
    7. Official Website of the Department of Homeland Security - Customs and Border Protection.  This website provides data on active Withhold Release Orders (WROs), findings, the number of shipments detained, and recent press coverage of CBP actions. It also provides contact information and instructions for the e-submission of petitions and a Submission Checklist that outlines what types of information are most useful to CBP for processing forced labor allegations.
    8. Corporate Accountability Lab and International Rights Advocates, Petition to exclude cocoa produced in Cote D’Ivoire, etc. (February 2020).  Corporate Accountability Lab and International Rights Advocates submitted this petition to CBP in February 2020, requesting that CBP issue a WRO against cocoa produced with forced child labor in Cote d'Ivoire. The petition requested that CBP require all listed importers to provide information within 180 days that the cocoa being imported into the US had not been produced with forced child labor. As of July 2024, CBP has taken no action on this petition.
    9. Government of Canada, Fighting Against Forced Labour and Child Labour in Supply Chains Act (2023). This law came into effect on January 1, 2024, and expands upon an existing ban on the importation of goods manufactured or produced, in whole or in part, by forced labor. The Act imposes an obligation on government institutions and private companies to report on the measures taken to prevent and reduce the risk of forced labor in their supply chains.
    10. European Union, Products Made with Forced Labour to be Banned from EU Single Market (2024). In April 2024, the European Union Parliament approved the proposed EU Forced Labor Regulation that prohibits the importation of products that are deemed to have been produced, manufactured, or extracted using forced labor. Any person, whether a natural or legal person or any association not having a legal personality, will be allowed to submit information or submissions on forced labor products to the member state authorities and the European Commission. If a product is deemed to have been produced using forced labor, it will no longer be allowed in the EU market, including online market platforms. Once the proposed regulation gets final approval from the EU Council, it will be published in the EU Official Journal and take effect three years after it enters force.

    Entry D.    Third-Party Rights as Key to Enforcement of Human Rights Provisions in Supply Chain Contracts

    Edited by Charity Ryerson

    Although it has become customary for multinational corporations (MNCs) to include provisions in their supply contracts that require sellers to comply with human rights norms, there is growing awareness that few MNCs or their suppliers are actually taking steps to enforce those provisions.  The following documents present the case for including third-party beneficiary provisions in supply contracts so that workers and other affected persons may have the right to enforce those provision in court, thereby obtaining damages, injunctions and other forms of relief.

    1. Avery Kelly, Bettina Braun and Charity Ryerson, Worker-Enforceable Supplier Codes of Conduct as a Tool for Access to Justice, Global Labor Rights Reporter, Vol. 1, Issue 1 (2021).  This article examines how third-party beneficiary rights have been used in supply chain contracts, both through implication and the use of express clauses establishing those rights, to provide workers and others harmed in global supply chains legal rights to sue supply chain actors.  
    2. James Gathii, Incorporating the Third-Party Beneficiary Principle in Natural Resource Contracts, 43 GA. J. INT’L & COMP. L. 90 (2014).  In this article, Prof. Gathii argues for the implementation of the third-party beneficiary principle into natural resource contracts, recognizing that communities in low-income, resource rich countries need standing to sue on extractive contracts when companies harm human rights. The article contextualizes the need for third-party beneficiary rights of community members with respect to natural resource contracts; traces the history of third-party beneficiary law; argues that the third-party beneficiary concept should be incorporated into natural resource agreements to further the intent of the parties and for public policy reasons; and responds to counter-arguments. 
    3. Debra Cohen Maryanov, Sweatshop Liability: Corporate Codes of Conduct and the Governance of Labor Standards in the International Supply Chain, 14 Lewis & Clark L. Rev. 397 (2010).  Maryanov's argument in this article is that the main MNC response to public outcry around human rights violations in supply chains -- voluntary codes of conduct and the way they are implemented -- allow MNCs to shield themselves from liability.  However, she also explores some legal theories that could hold corporations accountable when they don't uphold or enforce their codes of conduct, including the third-party beneficiary theory (on pages 432-435).  In the sub-section on third-party beneficiaries, Maryanov cites Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 (9th Cir. 2009) and a Tenth Circuit case that could lead to a different outcome in a case where workers in an MNC supply chain sue the MNC to enforce contract terms as third-party beneficiaries. (Note that this article is 11 years old but still relevant.) 
    4. Allie Robbins, Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry, 370 Univ. Pittsburg L. Rev. 80 (2018).  In this article, Prof. Robbins surveys post-Jesner cases in which plaintiffs attempt to hold corporations liable for human rights abuses in supply chains post-Jesner. She argues for a way forward through the third-party beneficiary doctrine. Robbins cites a Wisconsin state court case in which a university sued Adidas for not paying severance to workers in its supply chain in accordance with a University of Wisconsin licensing agreement.  A union representing 75% at a factory producing for Adidas intervened claiming that the workers it represented were third-party beneficiaries of the contract between the university and Adidas. The parties settled before the court rendered a decision on that issue. 
    5. Jonathan Lipson, Promising Justice: Contract (as) Social Responsibility, Wisc. L. Rev. 5 (2019).  In this article, Prof. Lipson discusses advantages and disadvantages of a contract strategy for human rights protection-- what he calls "contract social responsibility" or "KSR." This article is relevant in its analysis of the contractualization of human rights protections but does not discuss third-party beneficiary rights to sue either of the contracting parties. 

    Entry E.  EU Corporate Sustainability Due Diligence 

    Edited by Martijn Scheltema

    Introduction

    As of July 25 2024 the EU Corporate Sustainability Due Diligence Directive (CSDDD) has come into force.[1] It sets forth an obligation to undertake Human Rights and Environmental Due Diligence (HREDD) in supply chains, distribution and transportation value chains for larger companies. It also governs (larger) financial institutions, but only for their upstream operations, distribution and transportation and, therefore, does not yet implement an obligation to undertake HREDD vis-à-vis their clients. However, Article 36(1) requires the European Commission to submit a report to the European Parliament before 26 July 2026 in which it assesses whether broadening HREDD requirements for financial institutions is necessary and, if so, accompanied by a legislative proposal. Therefore, it is more limited than the UNGPs or OECD Guidelines for Multinational Enterprises as it does not govern all business and not the entire (also downstream) value chain either. Beyond this, the CSDDD does not require board approval and support for HREDD policies and implementation.

    As Recital 19 explains it entails an obligation of means, so the companies governed by it do not have to provide guarantees that no impact in their supply, distribution or transportation chain will occur. The only exception to this rule is Article 12. Companies have to provide remedy if required by this Article.[2] Beyond this, Article 14 requires companies to establish and maintain an UNGP 31 compliant complaints mechanism, or to embark in a mechanism operated by third parties.[3]  

    As it is a directive, it has to be transposed in the national laws of the member states by July 26 2026, pursuant to Article 37(1) CSDDD.

    This directive is part of broader HREDD legislation in the EU which set forth product oriented or specific human rights related adverse impacts-oriented approaches. These are, for example, the Deforestation-free products regulation,[4] Articles 47-53 of the Batteries Regulation[5] and the envisaged Forced Labor Regulation.[6]

    Scope

    According to Article 2(1) the CSDDD will ultimately govern European companies which have more than 1,000 employees on average and a worldwide turnover of 450 million or which are the ultimate parent company of a group that reached this threshold. The CSDDD also governs companies that have entered into or are the ultimate parent company of a group that entered into franchising or licensing agreements in the EU in return for royalties with independent third-party companies and if those royalties amounted to more than EUR 22.5 million and if the company had or is the ultimate parent company of a group that had a worldwide turnover of more than EUR 80 million. The CSDDD also applies to companies that are not based in the EU, but sell goods or services on the European market and meet the indicated turnover thresholds. However, the turnover threshold for non-EU based companies is based on turnover in the EU instead of worldwide turnover.

    Beyond this, the indicated thresholds will, pursuant to Article 37(1), apply in five years. The national laws transposing the CSDDD have to apply their laws to EU companies with an annual worldwide turnover of 1.5 billion and 5,000 employees after three years and of 900 million and 3,000 employees after four years. For non-EU based companies the same approach and turnover thresholds will apply, however, based on turnover in the EU.

    Due Diligence

    The CSDDD by and large implements the UNGP and OECD Due Diligence requirements in Article 5 and elaborates this in the following Articles, however, limited to the supply chains, distribution and transportation. Beyond this, the CSDDD implements the obligation to adopt and implement a climate change plan in Article 22. The reader is referred to a graph depicting the HREDD steps required by the CSDDD that may be found in SECTION III as an attachment to this website.

    Contractual Approaches

    HREDD in supply chains is often implemented through contracts, although contracts are, obviously, not the only means of undertaking HREDD. In this regard Recitals 46, 48 and 49 mention contracts and contractual assurances as means of implementing HREDD. These assurances, not only solicited from direct but also indirect business partners, are also mentioned in connection with prevention of adverse impacts in Article 10(2)(b), (4) and (5) and in connection with addressing actual adverse impacts in Article 11(3)(c), (5) and (6). In order to enhance proper implementation of the CSDDD in supply chain contracts Recital 66 and Article 18 oblige the European Commission to develop guidance for model clauses within 30 months after 25 July 2024.[8] The directive also requires changes to existing contractual approaches. For example, it is quite common to immediately terminate a supply chain contract in case of potential or actual (severe) adverse impacts such as child labor. This will no longer be possible under the CSDDD, as Articles 10(6) and 11(7) limit the options to immediately terminate. These Articles require prior to temporarily suspending or terminating a business relationship that the company assesses whether the adverse impacts of termination can be reasonably expected to be manifestly more severe than the adverse impact that could not be brought to an end or the extent of which could not be adequately minimized as well as the implementation of an enhanced corrective action plan if a reasonable expectation exists that  this will succeed prior to termination. Recital 50 clarifies that companies should suspend their business relationships with the business partner, thereby increasing their leverage and increasing the chances that the impact is addressed. Where there is no reasonable expectation that these efforts would succeed, for instance, in situations of state-imposed forced labor, or where the implementation of the enhanced prevention action plan failed to prevent or mitigate the adverse impact, the company should be required to terminate the business relationship with respect to the activities concerned if the potential adverse impact is severe.

    Liability and Public Supervision

    The Directive sets forth public supervision in Articles 24-28 CSDDD. Pursuant to Article 24 member states have to designate one or more supervisory authorities, which have the powers as set forth by Article 25 and may impose penalties mentioned in Article 27. Article 28 requires the establishment of a European network of national supervisors. Article 26 requires member states to establish a channel with the public supervisor(s) in which affected individuals, groups or the representatives may file substantiated concerns.

    Article 29 requires member states to adopt liability in their national laws for non-compliance with Articles 10 and 11 CSDDD (taking appropriate measures to address potential or actual adverse impacts). Member States shall also allow representation by third parties, such as trade unions or civil society organizations and include rules on taking of evidence. Article 29 requires member states to make this Article as transposed in their national laws of overriding mandatory application in cases where the law applicable to the claims would otherwise not be the national law of this member state. That said, Article 9 may be relevant for this liability. For example, if a company has not rightly prioritized adverse impact, it may have violated Articles 10 or 11 because appropriate measures have not been taken regarding the adverse impact it should have prioritized. In connection with Article 9 the question may also raise whether a company could argue that the severity of an impact as assessed by it did not require prioritization of this impact and, thus, it should not have implemented measures as mentioned in Articles 10 and 11 regarding this impact.

    Finally, the CSDDD does not further elaborate how the interplay between the complaints/notification mechanism of Article 13, public supervision and liability should be understood or function and how it fits with the broader remedy landscape, such as provided by NCPs. For example, it presumes that liability will be assessed in national courts. However, other escalation/binding mechanisms may be conceivable as well. One may think of arbitration.[9]

    [1] Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859, Official Journal of the European Union of 5 July 2024, L series, accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202401760.

    [2] Article 12 sets forth that such obligation exists if a company has caused or contributed to an adverse impact. If it is only caused by a business partner a company may voluntarily provide remediation or may exercise leverage to make the business partner that causes the adverse impact to provide remediation.

    [3] It also mentions a separate notification procedure in section 5, but it may not be easy to discern between the complaints and notification procedure in practice.

    [4] Regulation (EU) 2023/1115, accessible at Regulation (EU) 2023/ of the European Parliament and of the Council of 31 May 2023 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010 (europa.eu).

    [5] Regulation (EU) 2023/1542, accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32023R1542.

    [6] The provisional agreement is accessible at https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/CJ33/AG/2024/03-20/1298958EN.pdf.

    [7] The CSRD mentioned is the EU Corporate Sustainability Reporting Directive, (EU) 2022/2464, accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022L2464.

    [8] Recently the zero draft of European Model Clauses for Supply Chains developed by a European working group of experts is published for consultation. It is accessible at European Model Clauses (responsiblecontracting.org). 

    [9] See on this, for example, The Hague Rules on Business Human Rights Arbitration, accessible at The Hague Rules on Business and Human Rights Arbitration | CILC website. 

    Entry F.  Tort Liability of Business for Transnational Human Rights Abuses

    Edited by Douglass Cassel

    Corporate tort liability for transnational human rights abuses has occupied courts in North America and Europe for over a quarter of a century.  Recent trends suggest an increasing likelihood of multinational companies being held liable in tort to persons affected by the operations of their foreign subsidiaries.

    In the United States, a series of suits were filed against companies in the mid-1990’s under the Alien Tort Statute (ATS).  One well-known early case, Doe v Unocal, 395 F. 3d 932 (9th Cir. 2002), rehearing en banc ordered, 395 F. 3d 978 (2003), involved Unocal’s alleged responsibility for forced labor, murder and rape committed by the Myanmar army while providing security for construction of a gas pipeline owned by a joint venture of which Unocal was part.  The case was later settled for an undisclosed sum.

    However, in Kiobel v Royal Dutch Petroleum Co., 569 U.S. 108 (2013), the Supreme Court effectively shut down most such cases.  The Court ruled that federal courts have no jurisdiction under the ATS to adjudicate human rights abuses committed outside the U.S., except where the case “touches and concerns” the U.S. sufficiently to displace the presumption against extraterritoriality.  In Jesner v. Arab Bank, 138 S. Ct. 1386, (2018), the Court held that foreign corporations cannot be sued under the ATS.  And in Nestle v. Doe, 593 U.S. 628 (2021), the Court held that a U.S. company's "general corporate activity" in the U.S. is not sufficient to warrant ATS jurisdiction over human rights violations which the company allegedly aids and abets overseas.  Echoing its ruling on a section of the RICO statute in RJR Nabisco v. European Community, 579 U.S. 325, 337 (2016), the Court in Nestle ruled that ATS plaintiffs must establish that the “conduct relevant to the statute’s focus” occurred in the United States, even if related conduct occurred abroad.  

    Nonetheless, in separate opinions, five Justices opined that domestic U.S. corporations can indeed be sued under the ATS for alleged violations of international law.  This could potentially open the door to future litigation and legislation in a variety of contexts in the U.S. and elsewhere. (See blog below.)

    While the Supreme Court has thus almost entirely shut the ATS door, lower courts have recently reopened another: the centuries-old, common law doctrine of “transitory torts.”  That doctrine provides that persons who commit torts in one country, if found in a second country, can be sued in the courts of the second country, applying the tort law of the first country, so long as there is not an adequate forum in the first country.[1]

    In 2024, a Florida federal jury awarded eight plaintiffs a $38 million verdict against the Chiquita banana company for providing financial assistance to a paramilitary group in Colombia which murdered the plaintiffs’ relatives.  The court ruled earlier that plaintiffs did not have access to an adequate forum in Colombia because their safety (and that of their lawyers) could not be guaranteed.[2]  Applying Colombian tort law, the Florida jury found that Chiquita, among other things, knowingly provided “substantial assistance to the group to a degree sufficient to create a foreseeable risk to others.”[3]

    Whether the transitory torts doctrine will open many doors to corporate accountability in US courts for human rights violations abroad remains to be seen.  Chiquita is reportedly appealing the verdict.  Moreover, the facts in Chiquita were unusually egregious; the Justice Department had already imposed a $25 million criminal fine on the company.[4]  In addition, plaintiffs in other cases will need to prove that they have no adequate forum in the foreign country.  That will be more challenging in many countries than it was in the unstable security situation in Colombia.  US judges have long been reluctant to find inadequate fora in other countries when ruling on forum non conveniens.[5]  Still, where transitory tort complaints survive motions to dismiss, companies may find it in their interest to settle rather than risk outsized damages verdicts and concomitant negative publicity.[6]

    Potential corporate tort liability for transnational human rights abuses has also recently been expanded by the Supreme Courts of Britain and Canada, and by courts of appeal in Germany and The Netherlands.

    In a British suit brought by persons living near a copper mine in Zambia, the U.K. Supreme Court held in Vedanta v. Lungowe [2019] UKSC 20 that a British multinational company and its Zambian subsidiary could both be sued in the U.K. for alleged human rights abuses at the subsidiary’s mine.  The case was later settled on undisclosed terms.  On a jurisdictional appeal in Okpabi v. Shell [2021] UKSC 3, the Court reaffirmed Vedanta and again held that a parent company may owe a duty of care to persons affected by the operations of its foreign subsidiary.  Liability need not turn on formalities of separate corporate identity, but may depend on business realities, such as whether the parent shares de facto management of the activity at issue (in Okpabi, pipeline safety) with its subsidiary.

    In 2020 the Canadian Supreme Court held in Nevsun Resources Ltd. v. Iraya, 2020 SCC 5 that it is not “plain and obvious” that international law grants corporations “blanket immunity” from direct liability for violations of “obligatory, definable and universal violations of international law,” or from indirect liability for complicity.  The suit was brought by workers at a gold and minerals mine in Eritrea owned jointly by a Nevsun subsidiary and by the government of Eritrea.  The workers were allegedly subjected to forced labor, slavery, crimes against humanity, and to cruel, inhuman and degrading treatment.  The Court remanded for a determination of whether these human rights norms bind corporations and, if so, whether a damages remedy should be based on customary international law as part of the common law, or on some new or existing tort.  The case was later settled.

    In Germany, an appeals court in 2017 allowed a suit brought by a Peruvian farmer to proceed against a large Germany electric utility for contributing to global warming. Lliuya v. RWE AG, Case No. 2-O-28515, Regional Court of Hamm.  The farmer alleged that greenhouse gas emissions by the utility contributed to melting of glaciers in the Andes, threatening his farm in Peru.

    In The Netherlands, Nigerian farmers and the Dutch chapter of Friends of the Earth sued Shell and its Nigerian subsidiary for harm caused by an oil spill in Nigeria.  Under conflict of law rules, the Hague Court of Appeal in 2021 applied the UK Supreme Court decision in Vedanta.  Oguru and Efanga v. SPDC and Royal Dutch Shell, ECLI: NL: GHDHA: 2021: 132 (Jan. 29, 2021). The Court held that a parent company (Shell) may owe a duty of care to community residents affected by the operations of its foreign subsidiary.  Although not ordering Shell immediately to pay damages, the Court ordered Shell to install a leak detection system on a pipeline within one year, or else to pay the claimants a penalty of 100,000 euros per day.

    None of these cases has yet resulted in a final judicial determination of transnational corporate liability in tort for human rights abuses. However, some have settled, and they suggest a trend which could soon lead to a company being held liable in tort.

    For further analysis, articles and commentaries by Professor Cassel and others are linked below.  Views expressed represent only their personal views, not those of the ABA or the Center.

    1. J.P. Hipp et al., The Chiquita Verdict Expands International Human Rights Liability for Corporate Conduct Abroad, JUST SECURITY, July 26, 2024, available at https://www.justsecurity.org/98093/chiquita-verdict-human-rights/.
    2. Jack Haney, When the Law Works: In re Chiquita, State Torts, and a New Frontier, Corporate Accountability Lab, Aug. 5, 2024, available at https://corpaccountabilitylab.org/calblog/2024/8/5/when-the-law-works-in-re-chiquita-state-torts-and-a-new-frontier.
    3. Douglass Cassel, Suing Corporations for Violations of International Law: A Step Forward, Opinio Juris, June 28, 2021, available at http://opiniojuris.org/2021/06/28/suing-corporations-for-violating-international-law-a-step-forward/.
    4. Douglass Cassel, UK Supreme Court in Okpabi Clarifies Parent Company Duty of Care Toward Persons Allegedly Harmed by Subsidiaries, (Business & Human Rights Resource Centre, February 2021), available at https://www.business-humanrights.org/en/latest-news/uk-supreme-court-in-okpabi-clarifies-parent-company-duty-of-care-toward-persons-allegedly-harmed-by-subsidiaries/.
    5. Douglass Cassel, Suing Corporations under International Human Rights Law, NEW YORK LAW JOURNAL, March 19, 2020.  https://www.kslaw.com/attachments/000/007/696/original/3-19-20_New_York_Law_Journal.pdf?1584647293/.
    6. Douglass Cassel, Vedanta v. Lungowe Symposium: Beyond Vedanta: Reconciling Tort Law with International Human Rights Norms, OpinioJuris, April 19, 2019, available at http://opiniojuris.org/2019/04/19/vedanta-v-lungowe-symposium-beyond-vedanta-reconciling-tort-law-with-international-human-rights-norms%EF%BB%BF/.
    7. Douglass Cassel, Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence, 1 Business and Human Rights Journal 179-202 (2016), available athttps://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2267&context=law_faculty_scholarship.
    8. Douglass Cassel, Suing Americans for Human Rights Torts Overseas: The Supreme Court Leaves the Door Open, 89 Notre Dame Law Review 1773-1812 (2014), available at https://scholarship.law.nd.edu/ndlr/vol89/iss4/10/.
    9. Douglass Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Northwestern Journal of International Human Rights 304-26 (2008), available at https://scholarlycommons.law.northwestern.edu/njihr/vol6/iss2/4/.

    [1] E.g., Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K.B. 1774); J.P. Hipp et al., The Chiquita Verdict Expands International Human Rights Liability for Corporate Conduct Abroad, Just Security, July 26, 2024; T. Telford, Chiquita ordered to pay $38.3 million to victims of paramilitary group, Washington Post, June 11, 2024.

    [2] In re Chiquita Brands, Inc., Order Denying Defendants’ Joint Motion to Dismiss, Nov. 29, 2016 (D. Ct. S.D.Fla. 2016).

    [3] The Florida jury answered a series of questions demonstrating that Chiquita committed the tort of negligence under Colombian law.  (https://www.courthousenews.com/wp-content/uploads/2024/06/Chiquita-jury-verdict.pdf#page=2.09).

    [4] U.S. Dept. of Justice, Chiquita Brands International Pleads Guilty to Making Payments to a Designated Terrorist Organization And Agrees to Pay $25 Million Fine, March 19, 2007.

    [5] E.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

    [6] Chiquita later settled the claims of many other plaintiffs for amounts far less than the jury awarded the eight “bellwether” plaintiffs.  Jack Haney, When the Law Works: In re Chiquita, State Torts, and a New Frontier, Corporate Accountability Lab, Aug. 5, 2024.  Exxon also recently settled a transitory torts case from Indonesia after losing a motion to dismiss before a federal district court.  Doe v. Exxon Mobil Corp., 2022 U.S. Dist. LEXIS 137536 (D.D.C.); settlement announcement of May 15, 2023 at CohenMilstein, ExxonMobil -Villagers of Aceh Litigation.

    Entry G.  United Nations Treaty on Business and Human Rights

    Edited by Douglass Cassel

    Following a resolution of the UN Human Rights Council in 2014, renewed in 2024, an Intergovernmental Working Group chaired by Ecuador’s Ambassador to the UN in Geneva has met annually to draft a proposed treaty on business and human rights.  The instrument has been through three full drafts; a revised third draft, including options proposed by States was discussed in the 9th session in 2023, and will be further debated at the 10th session in October 2024.

    Diplomatic prospects for the treaty are highly uncertain.  Serious engagement by UN member States has been relatively scant.  Until recently the United States opposed and boycotted the process.  However, at the 9th session in 2023, the U.S. stated as follows:

    “We still have serious substantive concerns … Provisions remain both unclear and overly prescriptive. The text retains overly broad jurisdictional provisions, unclear liability provisions, inconsistencies with international law, and potential criminalization of an ill-defined range of activity. … The U.S. government is open to exploring alternative approaches that align with the UNGPs and are developed in collaboration with, and that ultimately reflect a broad consensus of business, civil society, and other relevant stakeholders.”

    The European Union has participated in the annual meetings but has yet to take a substantive position.  Despite the EU’s adoption in 2024 of the Corporate Sustainability Due Diligence Directive, and despite an EU Parliament recommendation in early 2024, the EU has still not given its diplomats a mandate for the treaty negotiations.  The UN Africa Group supports a treaty in principle but has said little about its content.  Despite some support in principle, most Asian and Latin American States remain non-committal.

    On the other hand, the treaty process is enthusiastically supported by over a thousand human rights groups and civil society organizations globally.  They contend that the UN Guiding Principles on Business and Human Rights, adopted by the Human Rights Council in 2011, and which do not legally bind business enterprises, have proved inadequate in practice either to prevent or to remedy business-related human rights abuses.

    In recent years the Ecuadorian Chair of the Working Group has taken steps to strengthen the negotiating process.  For example, in 2022 he recruited a group of six States, representing the five UN regions (Azerbaijan, Cameroon, France, Indonesia, and Uruguay), plus the home State of the UN Secretary-General (Portugal), as “Friends of the Chair.”  In 2024, he announced a group of five highly qualified legal experts (and five alternates, also highly qualified) to assist in the drafting process.

    The ABA has endorsed the UN Guiding Principles on Business and Human Rights.  However, neither the ABA nor its Center for Human Rights has taken a position on the proposed treaty.  Together with the Law Society of England and Wales, the Center in 2015 commissioned a White Paper on Options for a Treaty on Business and Human Rights,­ prepared by Professor Douglass Cassel of Notre Dame Law School and Anita Ramasastry of the University of Washington School of Law.  (See link below.)  (Views expressed in the White Paper are those of the authors.)

    On behalf of the Center, Professor Cassel has monitored the treaty process, attending meetings of the Intergovernmental Working Group and reporting to the Center’s Initiative on business and human rights.  His periodic commentaries, expressing only his personal views, are linked below.

    The articles and commentaries linked below are authored or co-authored by Douglass Cassel or Anita Ramasastry:

    1. Douglass Cassel and Anita Ramasastry, White Paper: Options for a Treaty on Business and Human Rights, 6 Notre Dame J. Int’l & Comp. Law, Issue. 1, Art. 1 (2015).
    2. Douglass Cassel, The New Draft Treaty on Business and Human Rights: How Best to Optimize the Incentives?, Business and Human Rights Resource Centre, August 24, 2021, accessible at https://www.business-humanrights.org/en/latest-news/commentary-the-new-draft-treaty-on-business-and-human-rights-how-best-to-optimize-the-incentives/
    3. Douglass Cassel, Progress in the Newest UN Draft Treaty on Business and Human Rights, Business and Human Rights Resource Centre (August 25, 2020).
    4. Douglass Cassel, Five ways the new draft treaty on business and human rights can be strengthened, Business and Human Rights Resource Centre (September 9, 2019).
    5. Douglass Cassel, Ecuador’s Revised Draft Treaty: Getting Down to Business, Business and Human Rights Resource Centre (September 3, 2019).
    6. Douglass Cassel, Book Review, Building a Treaty on Business and Human Rights: Context and Contours, Surya Deva and David Bilchitz, eds., Cambridge University Press, 2017, 41 Human Rights Quarterly 497-547 (2019) (requires fee or journal subscription).
    7. Douglass Cassel, At Last: A Draft UN Treaty on Business and Human Rights, Letters Blogatory, August 2, 2018 (https://lettersblogatory.com/2018/08/02/at-last-a-draft-un-treaty-on-business-and-human-rights/) .
    8. Douglass Cassel, The Third Session of the UN Intergovernmental Working Group on a Business and Human Rights Treaty, available at https://www.cambridge.org/core/journals/business-and-human-rights-journal/article/abs/third-session-of-the-un-intergovernmental-working-group-on-a-business-and-human-rights-treaty/037EA7A8E4B3FD999ADF304A227162EA. (Fee or subscription required to access full article.)
    9. Douglass Cassel, Ecuador’s Proposed Elements of a Treaty on Business and Human Rights: Off to a Good Start, Business and Human Rights Resource Centre (October 23, 2017).
    10. Douglass Cassel, Treaty Process Gets Underway: Whoever Said It Would Be Easy?, blog post for Business and Human Rights Resource Centre (July 12, 2015).
    11. Doug Cassel on an International Treaty (Podcast), Institute of Human Rights and Business, 10 December 2017, available at https://www.ihrb.org/latest/podcast-doug-cassel.

    Entry H.  The Hague Rules on Business and Human Rights Arbitration

    Edited by Anne van Aaken and Diane Desierto

    Access to remedies remains elusive for those affected by human rights abuses committed by business. One possibility of narrowing the legal gap are the Hague Rules on Business and Human Rights Arbitration, which provides a set of rules for the arbitration of business and human rights disputes. The Hague Rules are an example of the application of the third pillar of the UNGPs which secures the access to remedy, while serving as a strategy for business to fulfill its obligations under Pillar II of the Guiding Principles ex ante. They were developed after extensive consultation with numerous stakeholders and launched on December 12, 2019 at the Peace Palace in The Hague.

    The Hague Rules establish a concrete framework for arbitrating business and human rights disputes affecting a wide spectrum of stakeholders and occurring in diverse constellations and legal settings, ultimately providing claimants and respondents with a new, consensual, flexible, and multi-purpose remedial mechanism to resolve business and human rights disputes. The Rules take inspiration from the overall success of the Bangladesh Accords Arbitrations in expeditiously and justly resolving multi-stakeholder business and human rights disputes. The Hague Rules are explicitly modeled on the 2013 UNCITRAL arbitration rules[1], but with adjustments and flexibilities designed to respond to the specific context and needs of business and human rights disputes. Considering the breadth of the scope of potential disputes that may be arbitrated under the Hague Rules, parties may exercise their discretion to modify or opt out of certain provisions that do not respond to their needs in the dispute at issue. Certain Model Clauses annexed to the Hague Rules have been developed in this respect.

    The reader is urged to examine the following documents and papers:

    Short Entries

    Numerous blogs and short articles have been written about the Hague Rules. We recommend:

    Longer articles can be found here:

    On the interaction of International Investment Law and BHR Arbitration, see

    On the potential use of the Hague Rules for Labor Disputes and in Brand Agreements

    • Katerina Yiannibas, The Use of Arbitration to Resolve Transnational Labour Disputes, in SOCIAL JUSTICE AND THE WORLD OF WORK, B. Langille and A. Trebilcock eds., Hart, 2023. This book chapter sets out the strategic advantages of the arbitration mechanism as an option for the resolution of transnational labour disputes, as well as advancements to adapt the arbitration mechanism for its use to resolve transnational labour disputes; notably, The Hague Rules on Business and Human Rights Arbitration.  The book is available for purchase online.
    • Model Arbitration Clauses for Disputes Arising Under Enforceable Brand Agreements, for Global Labor Justice, Clean Clothes Campaign and International Labor Rights Forum, 2020. These Model Clauses, which draw on the Hague Rules on Business and Human Rights Arbitration, are designed to be incorporated directly into enforceable brand agreements to advance a streamlined arbitration system that protects impartiality and due process while avoiding excessive litigiousness, promoting transparency, alleviating burdensome costs, and providing final and binding enforcement.

    [1] Available at https://uncitral.un.org/en/texts/arbitration/contractualtexts/arbitration.

    Entry I.  The OECD’s Contributions to Corporate Human Rights and Environmental Accountability.

    Edited by Marian G. Ingrams

    The Organisation for Economic Cooperation and Development (OECD) is a multilateral organisation focused on promoting global economic development. It also undertakes research to develop evidence-based international standards, shares best practices, and advises public policymaking on an array of social, economic, and environmental issues. Current OECD Member states are listed here. The following documents and digital resources provide an introduction to the OECD’s substantive legal role in advancing expectations on corporate human rights and environmental accountability, with particular guidance on a leading OECD corporate standard on responsible business conduct and its related complaint mechanism.

    1.  Corporate standards on responsible business conduct. The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (Part I) (OECD 2023) provide in 11 chapters recommendations for multinational enterprises on how to engage in business responsibly. The Guidelines are recognized as a leading international standard on responsible business conduct. The first three chapters address general concepts, principles, and policies on responsible business conduct – covering, for example, issues such as corporate due diligence for responsible business conduct issues and corporate disclosure expectations. The remaining eight chapters set out expectations for good corporate conduct across themes such as human rights, the environment, employment and industrial relations, consumer interests, competition, and taxation. The standards are voluntary for companies, but binding for adherent states (see point 2 below). While the standards can guide better conduct for all companies, the Guidelines are targeted specifically to multinational enterprises headquartered in states adherent to the Guidelines and multinational enterprises from anywhere in the world operating within states adherent to the OECD Guidelines. The Guidelines are under the purview of the OECD Investment Committee and its Working Party on Responsible Business Conduct. In addition to the Guidelines themselves, the OECD has issued due diligence guidance clarifying how companies can implement RBC due diligence generally for all sectors following six basic due diligence steps, and within particular sectors including the mining, agriculture, garment and footwear, and financial sectors.
    2. State obligations on responsible business conduct. The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (Part II) (OECD 2023), also known as the Procedures, set out binding requirements for states that adhere to the Guidelines to implement them via a two-fold mandate of promoting them to businesses, civil society, labor unions, and other stakeholders, and hearing complaints (called “specific instances”) alleging that a covered enterprise has failed to meet one or more of the Guidelines’ standards. OECD Member states as well as other governments may and do adhere to the Guidelines; current Guidelines-adhering states are listed here. Adherent states are required to establish an office called a National Contact Point for Responsible Business Conduct (NCP) to implement this mandate. NCPs may also support their government in promoting policy and law on responsible business conduct that aligns with the recommendations in the Guidelines. The NCP specific instance (complaint) process has five stages:1) NCP coordination, when if more than one NCP is or could be involved in a complaint, they will coordinate to determine which will lead and/or how each will be involved in the complaint process; 2) Initial assessment, when the (lead) NCP assesses whether a submitted complaint meets established criteria for admission; 3) Good offices, during which the NCP facilitates dialogue – such as through mediation – between the complainant(s) and named enterprise(s); 4) Final assessment, during which the NCP consolidates the outcomes of the dispute resolution and publishes a final statement explaining the mediation process, any agreements reached, and (possibly) determinations on whether the company followed the standards in the Guidelines and recommendations for improvement; and 5) Follow-up, when usually six to twelve months following the publication of the final statement, the NCP follows-up on any agreement reached our recommendations given.
    3. Relevance of the Guidelines and OECD due diligence guidance to development of law on responsible business conduct and due diligence. Governments are increasingly proposing or adopting legislation on corporate sustainability due diligence and responsible business conduct and using the Guidelines as a guide or basis from which to do so. An example is the recently adopted EU Corporate Sustainability Due Diligence Directive, which explicitly incorporates the OECD’s six-step due diligence framework and recommends policymakers use the OECD Guidelines and due diligence guidance to guide their implementation and interpretation of the directive. Further, governments that adhere to the Guidelines endorse policy coherence between the Guidelines and national law and policy on responsible business conduct. In the OECD Recommendation on the Role of Government in Promoting Responsible Business Conduct (OECD 2022), governments are recommended to ensure the state’s own activities when acting as an economic actor are responsible, and to promote development of legal frameworks that align with the standards in the Guidelines. Further in the 2023 OECD Declaration on Promoting and Enabling Responsible Business Conduct in the Global Economy, Ministers of 51 adhering governments asked the OECD to establish a platform to support exchange of knowledge and best practice between states on advancing due diligence in law and policy.
    4. Additional documents and tools explaining the OECD Guidelines and complaint filing. The OECD has issued a brochure explaining in brief what the Guidelines contain. The OECD has also generated several guidance documents for NCPs (OECD, various years) (useful to would-be complainants, as well) discussing technical issues in the complaint process such as confidentiality/transparency and expectations for undertaking initial assessments. The OECD Watch network (the civil society network that serves as the official representative of civil society to the OECD Investment Committee) provides pages on its website explaining what is in the Guidelines by topics of interest to civil society and offering step-by-step guidance on filing complaints. OECD Watch also publishes guides, blogs, and factsheets about the Guidelines and how civil society can use them in community and business engagement, advocacy, and complaints.
    5. Databases of complaints (specific instances) filed to NCPs. The OECD Investment Committee secretariat maintains the OECD database of specific instances filed to all NCPs by any person or entity. The database allows basic search for complaints such as by NCP, host country (i.e. country of harm), relevant Guidelines chapter, industry sector, and year. In parallel, OECD Watch maintains the OECD Watch complaints database, which includes all Guidelines complaints filed by communities or civil society groups. The OECD Watch complaints database search filters allow nuanced identification and tracking of complaints across sectors, countries, victim group types, specific provision of the Guidelines cited, keyword topics (such as harm to human rights defenders or land rights issues), specific company names, and process issues. Descriptive entries for each case provide the perspective of the complainant and analysis by OECD Watch on the NCP’s handling of the complaint.
    6. Evaluation of the performance of NCPs by the OECD and NCPs. The Guidelines’ Procedures give states broad flexibility in establishing their NCP, so long as it is “functionally equivalent” to the other NCPs and meets core criteria of visibility, accessibility, transparency, and accountability and guiding principles for complaint handling of impartiality, predictability, equitability, and compatibility with the Guidelines. The Guidelines expect governments to ensure their NCPs the senior leadership, expertise, and human and financial resources necessary to carry out their dual mandate. It is broadly acknowledged, including by the OECD, that on the whole, the NCPs have not achieved these requirements and do not operate in a manner functionally equivalent to each other. The OECD published a report on the 20th anniversary of the NCP grievance mechanism system, entitled National Contact Points for Responsible Business Conduct: Providing Access to Remedy; 20 years and the road ahead (OECD 2020), that outlines strengths achieved and challenges faced by NCPs. In an effort to improve their performance, some NCPs undertake periodic regular internal reviews to strengthen their processes and procedures. Meanwhile, all governments that adhere to the Guidelines are expected to ensure their NCPs participate at regular intervals in a peer review process (OECD, ongoing) whereby a team of reviewers from other NCPs and the OECD provides reform recommendations to the NCP under review.
    7. Evaluation of the performance of NCPs by stakeholders. The official stakeholder representatives to the OECD Investment Committee, which are OECD Watch on behalf of civil society, Business at OECD on behalf of businesses, and the Trade Union Advisory Committee (TUAC) on behalf of unions, have the ability and right to seek improved performance of NCPs. All three are invited to engage, together with their constituencies, in the OECD’s peer review process and in regular consultations with the Investment Committee and Working Party on Responsible Business Conduct. The three stakeholders have called repeatedly, most recently in 2024, for strengthening of NCPs. OECD Watch maintains Evaluations of each NCP (OECD Watch 2021) measuring NCP compliance with a set of key performance indicators/priorities of civil society groups. Further all three stakeholders, along with adhering countries themselves, have a right under the Procedural Guidance to file a “substantiated submission” to the OECD Investment Committee either alleging an NCP is not fulfilling its responsibilities with regard to its handling of specific instances (Procedures II, 2 (b)) or assert an NCP has not correctly interpreted the Guidelines in specific instances (Procedures II, 2 (c)), and request corresponding recommendations from the Investment Committee (Procedures II, 2 (d)). The substantiated submission process functions somewhat like an appeal process and has been used a handful of times by a few adherent states, OECD Watch, and TUAC.
    8. 2023 Update of the Guidelines’ standards and grievance mechanism system. The OECD Guidelines date to 1976 and have been updated several times since then. The most recent update was in June 2023.Through that update, the OECD clarified in Part I of the Guidelines the steps and nature of responsible business conduct due diligence and provided new guidance for corporate conduct on many critical topics missing or under-addressed in the 2011 text of the Guidelines, including climate change and other environmental impacts, human rights defenders, stakeholder engagement, disclosure of responsible business conduct-related information, and impacts related to digitalization and technology. In Part II of the Guidelines, the OECD clarified basic expectations for the functioning of NCPs and offered recommendations to guide fulfilment of those recommendations.
    9. Binding requirement and recommendations on anti-bribery for states. Beyond the OECD Guidelines, the OECD has also made significant contributions on the subject of addressing corporate-linked bribery. States adherent to the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (OECD, entry into force 1999) are required to ensure that bribery, including aiding and abetting, inciting, or authorizing bribery, of foreign officials is a criminal offense under its laws. The OECD also has issued several recommendations to states on issues related to bribery and corruption. See the OECD’s instruments on bribery and corruption here (OECD, various years).
    10. Binding requirement and recommendations on taxation for states. The OEDC has also made significant contributions on addressing corporate tax avoidance. States adherent to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (OECD, entry into force 2018) are required to implement a series of tax measures to minimize the opportunity for corporate tax avoidance. The convention applies policy solutions developed through the OECD/G20 Base Erosion and Profit Shifting (BEPS) Project into global bilateral tax treaties. Further information is available here. See the OECD’s other instruments on taxation here (OECD, various years).

    Entry J.  BHR Law in Canada

    Edited by Brian Burkett

    This entry (updated on July 29, 2024) lists resources that provide an overview of Canadian engagement with Business and Human Rights (BHR). The list is divided into sub-sections to survey BHR action from the following key players in Canadian BHR, namely, the government, the judiciary, civil society and corporate actors. This repository also includes work published by Canadian or Canadian-based authors, researchers and academics.

    General Background

    For an overview of general Canadian BHR content, see:

    1.     Report of the Working Group (2018) on the issue of human rights and transnational corporations and other business enterprises on its mission to Canada: This UN report provides an account of the UN Human Rights Council Working Group visit to Canada in 2017, including an in-depth review of Canada’s domestic and international perspectives and practices on BHR.
    2. Please note that this publication is only available through a law or public library. Brian  Burkett, “1 – The international labour dimension: an introduction” in John D.R. Craig and S. Michael Lynk, Globalization and the Future of Labour Law (Cambridge:  Cambridge University Press, 2006), 15. This chapter looks at the historical development of the international labour dimension, including a discussion of the International Labour Organization, three regional systems, and free trade agreements in which Canada is involved.
    3. Kevin Banks, “Must Canada Change Its Labour and Employment Laws to Compete with the United States?” (2013) 38:2 Queen’s LJ 420. This paper reflects on whether pressures of an economic “race to the bottom” as exhibited in the United States will require Canadian jurisdictions to do the same in order to remain competitive.
    4. Please note that this publication is only available in hard copy format. Douglas G. Gilbert, Brian W. Burkett, Moira K. McCaskill, Canadian Labour and Employment Law for the U.S. Practitioner, 4th ed (Arlington, Virginia: Bureau of National Affairs, 2016). This textbook provides an overview of key distinctions between Canadian labour and employment law and US labour and employment law. It includes an overview of the Canadian labour and employment environment, a discussion on Canadian collective bargaining, the individual employment relationship, discrimination in employment, analysis of key Supreme Court of Canada decisions, and the effects of globalization on Canadian labour and employment law.
    5. Please note that this publication is only available through a law or public library. George W. Adams, Canadian Labour Law, 2nd ed (Toronto, Ontario: Thomson Reuters, 1993). George Adam’s textbook offers an analysis of collective bargaining laws as they apply to non-government employees across Canada. Labour relations statutes, labour board decisions, and judicial cases from all jurisdictions are analyzed.
    6. Please note that this publication is only available through a law or public library. Elise Groulx Diggs, Brian Burkett, and Mitt Regan, “The Regulation of Multinational Labour and Employment Practices Through a Galaxy of Norms” in Rae Lindsay and Roger  Martella, Corporate Social Responsibility – Sustainable Business: Environmental, Social and Governance Frameworks for the 21st Century (The Netherlands: Kluwer Law International, 2020), 505. This chapter provides a comprehensive overview of the regulation of labour and human rights practices at the transnational level. The authors use an analytical tool, called the galaxy of human rights norms, to assess hard and soft law in regulating labour practices in complex global supply chains. The Canadian experience, including developments in international human rights litigation, is specifically analyzed using this approach.
    7. Please note that this publication is only available through a law or public library. Brian Burkett, “Globalization in Transition: The Canadian Perspective” (2019) 21:2 Canadian Labour and Employment Law Journal (CLELJ) 399. This article provides a framework for understanding the Canadian experience of the changing and globalizing workplace. The author discusses major international trends, initiatives and developments respecting work and reviews the domestic and international activities aimed to operationalize the UN Guiding Principles on Business and Human Rights.
    8. Please note that this publication is only available through the Canadian Government (International Affairs at Employment and Social Development Canada). The Canadian Employers Council (CEC) Report to the Federal Government (2021) focuses on the corporate role, contribution and perspective towards the redesign of the social dimension of globalization with its attention on improving the human condition within the world economic order. The Report traces a myriad of efforts expended by a variety of actors to navigate a course correction on the social dimension of globalization.
    9. Please note that this publication is only available through a Lexology Pro subscription. The Lexology GTDT (2022) on Business and Human Rights - Canada, with contributions from Brian Burkett, Christopher Pigott, Claudia Feldkamp, Kai Alderson, Kevin O’Callaghan, and Pierre-Olivier Charlebois. This article provides a high-level overview of statutory and regulatory obligations impacting businesses in the Canadian context. It sets out the legal and policy framework at both the international and domestic level, as well as statutory and regulatory obligations including corporate reporting, disclosure, and due diligence. The article also sets out criminal and civil liability related to business enterprises, forms of judicial redress, and state-based non-judicial grievance mechanisms in Canada. 

    Government

    The Canadian system is an elaborate system of laws, enforcement mechanisms at the federal and provincial levels, and dialogue between players who continually refine the system. Both the federal government and provinces govern employment standards through various legislation. This governance structure is the same for occupational health and safety legislation. Under this system, the judicial and administrative enforcement mechanisms include redress through civil court, employment standards enforcement, alternative dispute mechanisms in non-unionized contexts and grievance and arbitration proceedings in unionized contexts.

    Under this complex system, the Canadian government has sought to promote the BHR regime by ratifying international conventions and developing legislative responses, regulatory mechanisms, and progressive trade agendas to develop, monitor, and enforce human rights for Canadian organizations operating both domestically and abroad.

    1. Canada has ratified 38 (of the 190) International Labour Organization’s (ILO) Conventions and 1 (of 6) protocols, including, most recently, ratifying the ILO’s Convention 190, Violence and Harassment Convention, 2019 (C190) on January 30, 2023.  Specifically, Canada has ratified nine of the ten conventions underlying the ILO’s Fundamental Declaration, as set out below:
      1. Forced Labour Convention, 1930 (No. 29) (and its 2014 Protocol)
      2. Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
      3. Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
      4. Equal Remuneration Convention, 1951 (No. 100)
      5. Abolition of Forced Labour Convention, 1957 (No. 105)
      6. Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
      7. Minimum Age Convention, 1973 (No. 138)
      8. Worst Forms of Child Labour Convention, 1999 (No. 182)
      9. Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)
    2. The Canadian Ombudsperson for Responsible Enterprise (CORE) is a human rights ombudsperson that is part of the Canadian government.  Its mandate is to encourage companies to follow the UN Guiding Principles on Business and Human Rights and the OECD Guidelines, to advise companies on ways to create responsible business practices and policies, and to review complaints about possible human rights abuses by Canadian companies working outside Canada in the garment, mining, and oil and gas sectors. The following summarizes recent activities from CORE:
      1. CORE’s  2023 report on child labour in the supply chains of Canadian garment companies summarizes the CORE’s 2022 study to understand the measures taken by Canadian garment companies to strengthen respect for child rights and address the risk of child labour in their global operations and supply chains and the challenges faced by these companies.  
      2. On March 21, 2023, CORE published its Second Annual Report covering the period from April 1, 2021 to March 31, 2022, summarizing its major activities throughout that period.
      3. The CORE also publishes quarterly reports.  In its report for the period January 1 through March 1, 2024, it confirmed that it has 22 active complaints under review.  Seven complaints are at the intake stage, five complaints are at the initial assessment stage, eight complaints are in the investigation stage, and two complaints are at the follow-up on recommendations stage.
      4. Sheri Meyerhoffer, the first CORE completed her five-year term in April 2024.  The Minister of Export Promotion, International Trade and Economic Development named Masud Husain as interim CORE.
    3. Recent Canadian legislative developments related to international human rights norms include the following:
      1. On January 1, 2024, the Fighting Against Forced Labour and Child Labour in Supply Chains Act (Act) came into force. The Act is Canada’s first legislation aimed at preventing and reducing the risk of forced and child labour in supply chains. The Act requires certain entities to publicly report on the steps taken during the previous financial year to prevent and reduce the risk that forced or child labour is used at any step of the production of goods in Canada or elsewhere by the business or of goods imported into Canada by the business. The deadline to publicly report was May 31, 2024.  The Act establishes an ongoing reporting obligation.  Subsequent reports are due on or before May 31 of each year.
      2. The Ministry of Public Safety published guidance earlier this year on preparing the report required by the Act.  The guidance also imposed an additional requirement to complete and submit a questionnaire.
      3. The Deputy Prime Minister announced in a March 28, 2023 budget speech that the federal government intended to introduce broader human rights due diligence legislation by 2024, which would likely go beyond the reporting requirements in the Act and require companies to take steps to identify and remedy human rights issues in their supply chains. The Federal Government organized a consultation with interested stakeholders in mid-October 2023 to discuss this proposed legislation.  The Federal Government’s commitment was reaffirmed in the Government’s 2024 budget announced on April 16, 2024.
      4. On December 4, 2023, amendments to the Ontario Prevention of and Remedies for Human Trafficking Act, 2017 received Royal Assent.  The amendments prohibit the collection of coerced debts (meaning a debt incurred as a result of the debtor being subject to human trafficking) and prohibit persons or entities from taking coerced debts into consideration when determining whether to provide credit services or products to the debtor.  The amendments will enter into force on a day to be proclaimed by the Lieutenant Governor.
      5. An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, which received Royal Assent in June 2021, and came into force on June 21, 2021. This enactment provides that the Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Government must also prepare and implement an action plan to achieve the objectives of UNDRIP.
    4. In March 2023, the federal government released its Interim Sustainable Jobs Plan for 2023-2025, setting out federal actions to create sustainable jobs while transitioning towards a clean energy economy. The interim plan for 2023-2025 sets an initial frame for the Sustainable Jobs Action Plans that will be released every five years starting in 2025 to guide efforts to support workers in the future economy.         
    5. The Canadian government has sought to develop progressive free trade agendas incorporating BHR practices through its free trade agreement (FTA) relationships. This inclusive approach to trade is a part of the Government of Canada’s trade diversification strategy that seeks to ensure that Canadian trade policy also reflects the government’s overall economic, social, and environmental objectives. It aims to ensure that more Canadians, including women and Indigenous peoples, as well small and medium sized enterprises, have access to the benefits of international trade and investment.  Canada has 14 bilateral and regional FTAs in force, covering 51 countries.  
      1. Some of Canada’s FTAs include the following:
        1. the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) at the multilateral level;
        2. the Canada-United States-Mexico Agreement (CUSMA / USMCA) at the regional level;
        3. the Canada-UK Trade Continuity Agreement (Can-UK TCA);
        4. the Canada-European Union Comprehensive Economic and Trade Agreement (CETA); and
        5. the Canada-Colombia Agreement on Labour Cooperation (LCA) at the bilateral level.
      2. Canada is currently negotiating additional bilateral FTAs, including but not limited to the following:
        1. Comprehensive Economic Partnership Agreement (CEPA) with Indonesia
        2. Canada-United Kingdom Free Trade Agreement (FTA) (currently dormant);
        3. Canada-India CEPA; and
        4. Canada-ASEAN FTA
    6. Pursuant to Canada’s obligations under the CUSMA, Canada has implemented an import ban on goods entering Canada, which are mined, manufactured, or produced in whole or in part with forced labour. The Canada Border Services Agency (CBSA) is the Canadian agency responsible for enforcing the import ban and is aided by the Employment and Social Development Canada (ESDC) – a separate and distinct federal department focused on labour-related programs – in gathering evidence of problematic supply chains.
      1. The CBSA published Memorandum D9-1-6 setting out the applicable Customs Tariff provisions and guidelines regarding this import ban.
      2. The ESDC’s webpage on Supporting the Forced Labour Import Ban and Social Corporate Responsibility (CSR) initiatives also sets out the ESDC’s role in supporting the import ban.
    7. In March 2023, Canada filed its first complaint under the Rapid Response Labour Mechanism (RRLM) under CUSMA. The complaint alleges that workers in Fränkische’s Mexican automotive parts facility have been denied their rights to freedom of association and collective bargaining.  The complaint was launched after a joint request from Canadian and Mexican unions. 
    8. In April 2022, the Canadian Ministry of International Trade, Export Promotion, Small Business and Economic Development released Responsible Business Conduct Abroad: Canada’s Strategy for the Future, setting out the federal government’s five-year strategy from 2022-2027 to support Canadian companies operating abroad. As part of this strategy, the Canadian General Standards Board (CGSB) also announced in January 2023 that it would form a technical committee to develop a new National Standard of Canada related to Responsible Business Conduct and due diligence reporting for Canadian companies operating abroad.
    9.    Kevin Banks, “Trade, Labor and International Governance – An Inquiry into the Potential Effectiveness of the New International Labor Law” (2011) 32:1 BJELL 45. This article comparatively analyzes the United States and Canadian experiences with respect to international trade-related labor agreements with their trading partners. The author undertakes to evaluate the governance model on which these agreements are based using game theory, international relations theory, and empirical research. The paper finds that new international trade and labor agreements offer important potential gains in effectiveness for international labor law, but are unlikely, in their present form, to lead to widespread improvements for fundamental labour standards. Instead, the author proposes an alternative model known as Leveraged Deliberate Cooperation.

    Court Decisions

    1. Charter litigation regarding labour rights. Canada has a robust judicial system and a well-developed labour rights regime, with rights to collective bargaining enforced by Supreme Court of Canada jurisprudence. The 2015 trilogy of Supreme Court decisions affirmed that the right to strike is a constitutionally protected right under the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms:
      1. Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1
      2. Meredith v. Canada (Attorney General), 2015 SCC 2
      3. Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4
    2. Case law on Canadian operations abroad. There is emerging Canadian case law dealing with the extraterritorial application of the Canadian legal system to Canadian multinational corporations’ operations abroad, including but not limited to: 
      1. Nevsun Resources Ltd. v. Araya, 2016 BCSC 1856, 2017 BCCA 401, 2020 SCC 5
      2. Choc v Hudbay Minerals Inc., 2013 ONSC 1414 , 2020 ONSC 415
      3. Das v. George Weston Limited, 2017 ONSC 4129, 2018 ONCA 1053
      4. Garcia v Tahoe Resources Inc., 2015 BCSC 2045, 2017 BCCA 39, 2017 CanLII 35114
      5. Notably, the Supreme Court of Canada in Nevsun affirmed that customary international law is automatically adopted into Canada’s domestic law without need for legislative action and must be treated with the same respect as any law in Canada.
      6. In December 2022, the Ontario Superior Court addressed, for the first time, the tort of human trafficking under the Ontario Prevention of and Remedies for Human Trafficking Act (see link above). This case involved an individual who was born in Albania and found work at a construction company in Canada.  He eventually gained status as a Temporary Foreign Worker.  He alleged that he was mistreated by his employer and his employer’s supervisor.  The court awarded damages for a variety of civil claims, including violations of the Human Rights Code, as well as punitive damages.  However, the Court dismissed the claim under the Prevention of and Remedies for Human Trafficking Act, finding, after a lengthy analysis of the allegations and the text of the statute, that the statutory test had not been met.
    3. Please note that this publication is only available through a law or public library. Judy Fudge, “Constitutionalizing Labour Rights in Canada and Europe: Freedom of Association, Collective Bargaining, and Strikes,” (2015) 68:1 Current Leg Probs 267. In this article, the author argues that the goal of constitutionalizing labour rights is a specific example of the broader and much more pervasive global constitutionalization that involves a shift in law’s legitimacy from constituent power, the will of the people, and democracy to rights in which courts are the key institutions in a complex transnational constitutionalism. Canada is used as a comparative case study.

    Civil Society

    1. Labour relations community. Canada’s labour and employment tri-partite system is composed of not only judicial and government actors, but a well-developed labour relations civil society. Notable federal-level civil society actors in the Canadian BHR field include
      1. Canadian Labour Congress (CLC) – As the largest labour organization in Canada, the CLC brings together both national and international unions, provincial and territorial federations or labour and community-based labour councils. It represents more than 3 million workers across Canada.
      2. Federally Regulated Employers - Transportation and Communications (FETCO) – FETCO is an employers’ association comprised of federally regulated organizations within the transportation and communications sectors. FETCO members collaborate on matters related to human resources and labour relations, including issues captured by several key pieces of legislation, such as the federal Canada Labour Code, Employment Equity Act, and Canadian Human Rights Act. FETCO is currently the official representative of the Canadian employer community within the International Organization of Employers and the ILO, including at the annual International Labour Conference held in Geneva, Switzerland.
    2. Neutrals. Canada’s judicial system also has a superior alternative dispute resolution system, which focuses on the role of neutrals such as conciliators, mediators, facilitators, fact-finders, and arbitrators who also have international prominence. This distinct feature of the Canadian judicial system operates hand-in-hand with its well-developed labour relations community, marrying government with civil society in further developing the Canadian BHR framework. 

    Corporate

    1. Please see Items 8 and 9 in the General section, which references the CEC Report and The Lexology GTDT (2022) on Business and Human Rights - Canada article. 

    Entry K. Human Rights Norms: Their Development and Evolution from “Soft” Law to “Hard” Law and Emerging Regulatory and Business-led Enforcement Systems.

    Edited by Elise Groulx Diggs

    Section 1: Galaxy of Norms:  French Duty of Vigilance Legislation in Civil Law, Duty of Care in Common Law and Global Soft Law in the Field of Business and Human Rights

    1. Comparative Law Perspectives on the French Duty of Vigilance Law and the Duty of Care   

      Béatrice Parance, Elise Groulx & Victoire Chatelin. Regards croisés sur le devoir de vigilance et le duty of care. Journal du droit international (Le Clunet), 22 (Lexis Nexis SA, Winter 2018).  [French version]

      Béatrice Parance, Elise Groulx & Victoire Chatelin. Comparative Law Perspectives on the French Duty of Vigilance Law and the Duty of Care, Journal of International Law (Clunet), 22 (Lexis Nexis SA, Winter 2018). [English version]

      This article frames and assesses the French Duty of Vigilance Law in a global legal context.  The law is presented as part of an international trend for States to give legal force to the “voluntary” commitments of MNEs in the fields of CSR, RSE, RBC and human rights in business. There is a related focus on human rights violations in global supply chains (illustrated notably by the Rana Plaza disaster.) The concept of “business and human rights as a galaxy of norms” is introduced as a tool for mapping the linkages between the “duty of vigilance” in French civil law and the “duty of care” doctrine for corporations in common law countries. Both legal concepts can be easily located in the wider galaxy of human rights soft and hard law.
    2. Business and Human Rights as a Galaxy of Norms

      Elise Groulx Diggs, Mitt Regan & Béatrice Parance. Business and Human Rights as a Galaxy of Norms, 50/2 Georgetown Journal of International Law, 309 (Winter 2019).

      This article closely examines the various components that make up the “galaxy” of international human rights norms.   It described the “rings” into which international human rights norms may be grouped, based upon the “hardness” or “softness” of their authority at any given time.  It points out that “hard” law in the center ring is rapidly expanding, as legislatures, courts and administrative bodies turn “soft” law into “hard” regulatory mandates and binding elements of the responsible conduct, standards, or duty of care.  It discusses the ways in which extra-legal stakeholders, such as banks, insurance companies, investors, customers and shareholders, are continuously influencing the decisions of businesses in the human rights area.  The article argues that legal practitioners should familiarize themselves with “soft” law and the growing corpus of international norms, given this highly dynamic process and its impact on the potential for application to their clients’ activities.

      The article offers a global perspective on the emerging field of “business and human rights” (BHR), a relatively recent arrival in the world of both business law and human rights. It presents the galaxy of BHR Norms as a conceptual model for mapping the complex interplay of hard and soft law instruments. The authors focus on how “soft law” instruments negotiated in international bodies such as the OECD (1960s), the ILO (1920s) and UN human rights bodies are shaping more recent action by governments to enact “hard law” regulation and legislation. To illustrate, the authors examine in depth the case of the convergence between French Duty of Vigilance Legislation (2017) and the duty of care doctrine in common law countries (shaped by decades of court-made jurisprudence and business regulation).
    3. The Regulation of International Labor and Employment Practices Through a Galaxy of Norms

      Elise Groulx Diggs & Brian Burkett & Mitt Regan, The Regulation of Multinational Labour and Employment Practices Through a Galaxy of Norms, in Corporate Social Responsibility, Sustainable Business Environmental, Social and Governance Frameworks for the 21st Century 501, 501-528 (Rae Lindsay and Roger Martella eds., 2020).

      Labor and human rights issues have generally fallen under the regulatory oversight of national and local governments throughout much of the past century.  In recent decades, however, their (effective) authority has been challenged by economic globalization, notably the growth of complex global supply chains operating across multiple countries and often simply escaping national regulation. This article reviews the expanding role of international “soft law” in complementing the “hard” law labor regulation of nation states. The “galaxy of norms” is presented as a valuable method mapping the fluid interplay between national regulations and the “soft law” standards agreed by member states of international bodies such as the ILO (since the 1920s), the OECD (since the 1960s) and various UN human rights bodies (since the 1940s).
    4. Operationalizing the ABA Model Contract Clauses for supply Chains using the Galaxy of Business and Human Rights Norms Framework

      Elise Groulx Diggs, Mitt Regan & Pam Ly, Operationalizing the ABA Model Contract Clauses for Supply Chains Using the Galaxy of Business and Human Rights Norms Framework, in Contracts for Responsible and Sustainable Supply Chains: Model Clauses, Legal Analysis, and Practical Perspectives 449-473 (David V. Snyder & Susan A. Maslow eds., 2023).

      The concept of a galaxy of BHR norms” leads directly to contract law as a flexible instrument for connecting human rights “soft law” guidelines with the web of legal contracts (enforceable in court) that forms a backbone of international business law. This article focuses on the challenge of regulating complex global supply chains that operate across national borders, opening the “governance gaps” where labor and human rights violations occur. The article argues that human rights soft law can be inserted into international business contracts using the case of the “Model Contractual Clauses” (MCC) in Supply Chains developed by the Business Law Section of the ABA, a source of guidance for US and global business lawyers.
    5.   United States National Action Plan for implementing the OECD Guidelines on Responsible Business Conduct (RBC)

      Elise Groulx Diggs & Eve Tessera. Le Plan d’Action National USA, 4 Revue Internationale de la Compliance et de l’Ethique des Affaires, Cahiers Pratiques – Fiche Pratique 149 (Lexis Nexis SA, 2024).  [In French]

      The OECD Guidelines on Responsible Business Conduct (RBC) depend for their moral suasion on national governments that negotiate and endorse them with business. The OECD can count of the support of its 38 member states plus the participation of Brazil, China, Indonesia and South Africa as key partners. The US federal government, in order to shine light on its commitment and support for human rights, recently strengthened its National Action Plan (NAP) for promoting the Guidelines following consultations that lasted two years and clearly reflected its commitment to human rights. The new policy, announced in March 2024, strengthens the principles of responsible business conduct (RBC) developed by the OECD and includes new incentive measures designed for American corporations operating internationally. The plan is designed to highlight three themes: engagement with stakeholders; access to remedy; improved protection of human rights defenders.
    6.  Interpreting the French Duty of Vigilance Law

      Stéphane Brabant et Elise Groulx, Interprétation De La Loi Sur Le Devoir De Vigilance, Où En Est-On Après 7 Ans ?, Village de Justice (14 Juin 2024).
      https://www.village-justice.com/articles/index-juridique/etat-des-lieux-loi-devoir-vigilance-plus-ans-apres-son-adoption,50044.html [English version available via a link at the end of the article.]

      This article describes the French Law of Due Diligence, adopted in March, 2017.  Issues discussed in the article include :
      1. How an effective plan of vigilance should be developed with relevant stakeholders and made public.
      2.   How enforcement is still left open – no state agency is responsible, and no decree was adopted to guide interpretation.
      3. That litigation in last 5 years has been largely procedural, resulting in delay and stagnation.
      4. That many substantive issues remain to be resolved including the need for:
        1. A legal definition of the “duty of vigilance” doctrine.
        2.  Legal standards for the meaning of an “adequate” vigilance plan.
        3. Guidance as to the conduct of engagement and negotiations involving corporations, NGOs, communities and civil society.
        4. Procedures for bringing court actions need that are better defined and made more available.

    Section 2:  Business Regulation and Legislation; Extra Financial Reporting, Performance and “Greenwashing”

    1. The Declaration on Extra-Financial Performance:  A New Ambition for Extra-Financial Reporting

      Béatrice Parance & Elise Groulx. La déclaration de performance extra financière: nouvelle ambition du reporting extra-financière, 11 La Semaine Juridique – Entreprises et Affaires: Etudes et Commentaires 1128, (Lexis Nexis SA, March 2018).  [In French]

      The EU adopted a directive on Extra-Financial and Diversity Reporting in 2014 (“Barnier Directive”). In 2017, the French Government adopted a regulation (decree or ordonnance) implementing the directive (the process of “transposition” by members states of the EU.)  The French measure constitutes a major innovation in three key areas:
      1. Encouraging corporations to embed extra-financial performance in corporate and business strategy and in the process tightening the link between extra-financial and financial performance.
      2. Embedding the regulation of extra-financial reporting in a regulatory and legal web with two other laws concerning the duty of vigilance and anti-corruption (Loi Sapin II in France).  These are three key fields of “extra-financial performance.”
      3. Using innovation in reporting to reinforce the trend towards greater transparency in business strategy and operations.

        The regulation gives corporations and investors an ambitious new mission and vision for innovation in extra-financial reporting.
    2. Regulatory Frameworks to Combat Greenwashing

      Béatrice Parance, Elise Groulx & Laetitia Montero. Regulatory Frameworks to Combat Greenwashing, One Planet Network Consumer Information Programme (August 17, 2023).  (Published under the auspices of: UNEP, the Consumer Information Programme of the 10 Year Framework of Programmes on Sustainable Consumption and Production(10YFP), with International Climate Initiative (IKI) and the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (BMUV).)

      This policy brief focuses on a key emerging issue in extra-financial reporting, called “greenwashing.” The brief focuses on measures to ensure that corporations make full disclosures of their climate impacts and report on related measures to reduce greenhouse gas emissions, manage environmental impacts and speed the transition to a net zero emissions economy. Consumers, investors and regulators need this information to make informed decisions concerning a corporation’s business performance in these areas. “Greenwashing” is a catch phrase for a complex basket of practices that undermine the objective of full disclosure. The policy brief provides detailed guidance to governments on how to design policies, legislation and regulations to combat greenwashing. Its scope is comprehensive including:
      1. Legislation on consumer protection and environmental claims.
      2. Drivers of action to implement legislation.
      3. Forward looking legislation that takes account of product sustainability.
    3. European Union (EU) Regulation on « Zero Deforestation » (UE 2023/115). French Title:  Règlement européen UE 2023/115 dit «zéro déforestation»

      Elise Groulx Diggs & Eve Tessera, European Union (EU) Regulation on « Zero Deforestation » (UE 2023/115), 5 Revue Internationale de la Compliance et de l’Ethique des Affaires, Cahiers Pratiques – Fiche Pratique 186 (Lexis Nexis SA, October 2024).  (In French)

      The EU Directive on deforestation was adopted in 2023 with the aim of imposing limits or outright bans both on EU exports and on imports to European markets of products that are derived from forests that may contribute to processes of deforestation around the world. The legislation is wide in scope and imposes complex reporting, certification and compliance obligations on corporations. A core requirement is that corporations exercise “reasonable diligence” to ensure – and publicly disclose – that products they export or import present zero-to-negligible risks of contributing to deforestation. This is a new field of extra-financial reporting that will add to the family of complex legal issues facing corporations including: “duty of vigilance,” “due diligence” and “duty of care.”

    Section 3:  Mediation as a Tool for Community Engagement, Conflict Management and Access to Remedy in Large Infrastructure Projects

    The following articles describe:

    • The role of community engagement and conflict management in “green infrastructure” projects.
    • Conflict management as a key element of “just transition” towards net zero emissions in the global economy
    • Business and human rights perspectives on green infrastructure projects
    1. Mediating to Avoid High Financial Risk (in Peru)

      Carlos Jose Valderrama & Elise Groulx Diggs. Mediating to Avoid High Financial Risk, Mediation 360, International Mediation Institute (IMI) (October 5, 2020).

      This online briefing note points to the dramatic case of Peru, country where the high risk of social conflict generates significant financial risks for large infrastructure and mining projects. About 50% of “big footprint projects” in mining, oil, forestry and infrastructure are permanently affected by social unrest and related violent protests in Peru. This situation creates so much risk that investment in these strategic economic sectors is in constant danger of declining and even of coming to a halt in some cases. Both domestic and foreign banks are concerned about excessive levels of social risk in Peruvian project finance. Key points of the note are:
      1.  In 2015, the Peruvian Banking Authority adopted a regulation requiring project finance banks to require project consortia to conduct community consultation and social risk assessments prior to being granted credit.
      2. The aim of the regulation was to press project consortia not simply to “consult” stakeholders but to actively earn a “social license to operate” from the affected communities.
      3. The question was not why or whether … but how?
      4. The regulation’s answer was to foster innovative, creative forms of mediation.
    2. Mediation of Human Rights Disputes

      Elise Groulx Diggs. Mediation in the Field of Business and Human Rights, article written  for the American Bar Association Dispute Resolution Section (July 2, 2021) and republished by the International Mediation Institute (IMI) Newsletter (July 7, 2021).   

      This briefing note presents a smaller-scale individual case, with names disguised – the successful mediation of a human rights dispute alleging abusive work conditions and labor practices in a global supply chain. This situation involved several commercial disputes among purchasers, contractors, sub-contractors, and workers from the “informal economy.” The workers’ labor had been purchased without the use of normal employment instruments and access to formal grievance mechanisms. The case maps concisely a step-by-step process and the “rules of the game” in a complex mediation, describing:
      1.  Parties.
      2. Process.
      3.  Rules.
      4.  Limitations and caveats.
      5.  Solutions and outcomes.
      6. The remedy.

        In this case, the remedy was agreed by all parties to the mediation.
    3. The « CMC »: an innovative framework towards an inclusive approach to conflict management in infrastructure projects

      Marie-Camille Pitton, Eve Tessera & Elise Groulx. Le « CMC » : un outil innovant pour une approche inclusive de la gestion des conflits sur les projets d’infrastructure, Village de la Justice (24 Juin 2024).  (In French)

      Marie-Camille Pitton, Eve Tessera & Elise Groulx. The « CMC »: an innovative framework towards an inclusive approach to conflict management in infrastructure projects, Village of Justice (June 24, 2024).  (In English)

      This article presents the rationale for developing a “new generation of dispute board” for large infrastructure projects. Traditional dispute boards are designed to resolve commercial disputes among members of project consortia. The article presents the design of a conflict management committee (“CMC”) that actively invites the participation of indigenous people and stakeholders affected by the projects, along with strict monitoring.

      There a dual rationale. The first is to prevent or mitigate the social conflicts and disruptions that have been common for decades in many countries. The second is to place new energy projects – solar panels, wind farms, some hydro dams – on a sound footing with communities.

      It is only by following this approach that we will achieve fair transition and sustainable, and inclusive development. To quote the United Nations Secretary-General, Antonio Guterres, “The extraction of critical minerals for the clean energy revolution – from wind farms to solar panels and battery manufacturing – must be done in a sustainable, fair and just way.”

      The “CMC” concept is presented in detail in the CMC Rules described below.

      The CMC received the support of the ABA as a whole during its 2025 midyear meeting in Phoenix, Arizona by the adoption of Resolution 607, presented by the Center for Human Rights, through its Chair, Roula Allouch, and its Executive Director, Michael Pates. The approving resolution and supporting documentation are available at https://www.americanbar.org/content/dam/aba/directories/policy/midyear-2025/607-midyear-2025.pdf.  See, Michael Goldhaber, NY Stern School of Business, “ABA Backs Human Rights Mediation for Development Projects,” (NY Stern Center for Business and Human Rights, February 18, 2025)

    Section 4. OHADAC Conflict Management Committee Rules

    Marie-Camille Pitton, Elise Groulx Diggs, Mark Appel, Wolf von Kumberg & Eve Tessera,  OHADAC Conflict Management Committee Rules. CARO Centre - OHADAC Regional Arbitration Centre (October 2023).  (Publication of CARO Centre (OHADAC Regional Arbitration Centre) – Caribbean Region Interreg Caraïbes, Union Européene, OHADAC, CCI Iles de Guadeloupe, ACP Legal.)

    Conflict in large complex infrastructure projects and undertakings is inevitable. But the inordinate delays, brought about by contractual issues and stakeholder grievances such as community protests issues due to the lack of adequate consultation or follow-up provoke spiraling costs and damage to governments and businesses. The failure to anticipate and effectively address these negative impacts leads to conflict that can be avoided and/or managed.

    To ensure that large infrastructure projects respect “People and Planet,” the OHADAC Regional Arbitration Centre (CARO Centre) proposed a new framework and rules: the Rules of procedure of the Conflict Management Committee (CMC).  The Rules were designed and crafted to support and accelerate a new era in global economic, social and environmental development, by mediation experts using a “team approach” and were given a thorough peer review by outside experts. The Rules offer a framework focused on early problem identification, exploration and resolution, including both contractual and ESG related issues. They provide the basis for:

    • Mediation expertise via a panel of expert mediators who have authored and/or reviewed the CMC rules.
    • The use of rules and processes designed for the governance of CMCs and for the conduct of mediation.
    • The potential use of CARO as a robust institutional “home” for mediators that could sponsor and host a series of “CMCs.” CARO has established relationships in EU, Caribbean, OHADA and various other regions.

    SECTION II. BIOGRAPHICAL INFORMATION

     A.  The Editorial Board

    Brian Burkett is a Canadian labour, employment and human rights practitioner. His practice, since the passage of the UN Guiding Principles on Business and Human Rights (UNGP) in 2011 has increasingly focused on international and domestic developments in respect of the application of human rights to business activities. Brian is counsel to the Canadian Employers Council (CEC), the official "voice" of Canadian business, on the international stage, in relation to the world of work and global workplaces. He is a member of the Executive Committee of the Canadian Labour Law Association (CLLA), an associate editor of the Canadian Labour and Employment Law Journal, and a member of the International Association of Labour Law Journals. He sits on the Advisory Board of the Centre for Industrial Relations and Human Resources (CIRHR) at the University of Toronto where he is an adjunct professor and co-teaches the course on "International Developments in Labour and Human Resource Policy".

    Douglass Cassel is Emeritus Professor of Law and Notre Dame Presidential Fellow Emeritus at Notre Dame Law School.  Until retiring in 2018, he taught international law and international human rights law, including courses on transnational corporations and human rights. He is currently counsel on matters of business and human rights at a global law firm.

    Claes Cronstedt is member of the Swedish bar and a former international partner of Baker & McKenzie. He has been involved in international human rights litigation, in particular the Raoul Wallenberg Case against the USSR.  From 2001 to 2014 he was a member of the CSR (Corporate Social Responsibility) Committee of the Council of Bars and Law Societies of Europe (CCBE).  He was a member of the Swedish Committee of the International Chamber of Commerce (ICC) Commission on Business in Society (2001-2004) and a trustee of International Alert, London, working with peaceful transformation of violent conflicts (1999-2006). In 2006-2008 he was a member of the International Commission of Jurists’ Expert Legal Panel on Corporate Complicity in International Crimes.  He is the founder of the Raoul Wallenberg Academy for Young Leaders.  He is a member of the Gaemo Group, Corporate Responsibility International.

    Elise Groulx Diggs is an international lawyer and mediator (IMI) practicing in the field of Business and Human Rights for the last decade. Elise is a member of the Paris Bar and of the Québec Bar. She is a licensed legal consultant at the New York Bar. She is an Associate Tenant, Doughty Street Chambers, (London) and Principal, BI for Business Integrity & Partners (Washington, DC). She helped established the ABA Center for Human Rights Advisory Board Business & Human Rights Project in 2013 and has been its Convenor since. She is also the Chair of the IBA Business and Human Rights Committee and is Co-Director of the Program for Lawyers in Business and Human Rights at Georgetown University Law Center.  Elise co-authored 3 major articles in Business and Human Rights since 2018, including the article appearing in Entry A, above.

    Charity Ryerson is the Executive Director and Founder of Corporate Accountability Lab, where she and her team of attorneys use legal design tools to improve access to remedy for victims of corporate human rights abuse. Her experience includes litigating complex international human rights cases under the Alien Tort Statute, Torture Victim Protection Act and state tort law, labor and human rights monitoring, anti-union violence investigations, and support for labor organizing in Central and South America. Charity graduated cum laude from Georgetown Law and is licensed to practice in D.C. and Illinois.

    Martijn W. Scheltema is a partner and chair of the Business Human Rights Practice group of Pels Rijcken (a Dutch law firm), professor at Erasmus University Rotterdam (the Netherlands) and chair of the dispute resolution body of the Dutch International Responsible Business Conduct Agreements in the Textile and Natural Stone sector. 

    John F. Sherman, III has been a Senior Program Fellow at the Corporate Responsibility Initiative of the Center for Business and Government at the Harvard Kennedy School since 2008.  He has been General Counsel and Senior Adviser to the independent nonprofit Shift, the leading center on implementation of the UNGPs, since 2011.  He was senior legal advisor to Prof. John Ruggie, former Special Representative of the UN Secretary General on Business and Human Rights, and helped him shape and draft the UNGPs.  He has authored nearly twenty articles, book chapters, and papers on business and human rights, and has lectured dozens of times on the subject to businesses, trade associations, multistakeholder initiatives, law firms, legal departments, and law schools  He retired from National Grid as its deputy general counsel in 2008, with high level leadership responsibilities for litigation, environmental, health, and safety, business ethics and compliance, risk management, and corporate responsibility.

    Robert C. Thompson is a member of the California bar, a former Associate General Counsel of the U.S. Environmental Protection Agency and a former partner of LeBoeuf, Lamb, Greene & MacRae LLP, where he was the chairman of the firm’s international environment, health and safety practice.  Following his retirement in 1999, he has been active in human rights research and writing.  He is a co-author of four articles on human rights topics, including one appearing in Entry A, above.

    B.  Authors of Entries other than Editors

    Anne van Aaken ([email protected]) is Alexander von Humboldt Professor for Law and Economics, Legal Theory, Public International Law and European Law and Director, Institute of Law and Economics, University of Hamburg, Law School.  She was Vice-President of the European Society of International Law (ESIL) and has been an expert consultant for the IBRD, OECD, UNCTAD and GIZ. She is member of the editorial board of the American Journal of International Law, the Journal of International Economic Law, the European Journal of International Law, and is general editor of the Journal of International Dispute Settlement and publishes therein.  She was a member of the Drafting Team of the Hague Rules.

    Diane Desierto ([email protected]) is Professor of Law and Global Affairs, LLM Faculty Director at Notre Dame Law School and Keough School of Global Affairs, University of Notre Dame (USA); Professor of International Law at Philippines Judicial Academy.  She was a member of the Drafting Team of the Hague Rules. 

    Marian G. Ingrams ([email protected]) coordinates the OECD Watch network, the official representative of civil society to the OECD Investment Committee. Marian oversees the network's strategic and logistical activities, drafts and advises complaints to National Contact Points and appeals to the Investment Committee, and engages in advocacy towards the OECD secretariat and individual OECD states on business & human rights issues. Before joining OECD Watch, Marian provided research, advocacy, legislative drafting, and litigation support to NGOs in Myanmar, India, South Africa, the United Kingdom, and the United States. She also served for four years as the foreign, trade, and defense legislative assistant to a U.S. Senator. Marian graduated cum laude from Harvard Law School and is licensed to practice in the state of New York.

    SECTION III. ATTACHMENTS

    Attachment to Entry E: Guide to the EU HREDD Requirements.

    The relevant Articles of the CSDDD implementing HREDD based on the OECD Due Diligence Cycle.

    The relevant Articles of the CSDDD implementing HREDD based on the OECD Due Diligence Cycle.

    It is important to note that Article 13 requires meaningful engagement with stakeholders when undertaking all of these steps. If the adverse impacts cannot all be addressed at once Article 9 allows prioritization based on the severity and likelihood of the adverse impacts. Severity should be understood in line with the UNGPs. Therefore, the severity of the impact vis-à-vis rights holders is decisive and not the severity of the impact for the company.