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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 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 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 authorities, given this highly dynamic process and its impact on the potential for application to their clients’ activities.

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

Section 307 of the Tariff Act of 1930 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 following documents provide an introduction to the Act and the role of US Customs and Border Protection in enforcing it:

  1. International Labor Rights Form, Briefing Paper, Combatting Forced Labor and Enforcing Workers’ Rights Using the Tariff Act, (February 2020). This briefing paper provides an overview of the history of Section 307, discusses some of the difficulties of enforcement, and provides recommendations for how enforcement of Section 307 could be strengthened.
  2. The Human Trafficking Legal Center, Importing Freedom: Using the U.S. Tariff Act to Combat Forced Labor in Supply Chains (June 2020).  This guide provides advocates with information on how to effectively use Section 307 of the Tariff Act. The guide provides an overview of the core components of a petition and includes a suggested submission template and intake questionnaire.
  3. Official Website of the Department of Homeland Security - Customs and Border Protection.  This website provides data on active Withhold Release Orders, findings, the number of shipments detained, and recent press coverage of CBP actions. It also provides contact information and instructions for e-submission of petitions.
  4. The Human Trafficking Legal Center, Template for Submissions Alleging Forced Labor under Section 307 of the U.S. Tariff Act of 1030 (2020).  This template provides advocates with a guide for submitting 307 petitions to Customs and Border Protection. It provides advocates with guidelines about how to write a petition and what information should be included.
  5. 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 Customs and Border Protection in February 2020, requesting that CBP issue a Withhold Release Order (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.
  6. Interfaith Center on Corporate Responsibility, on behalf of AFL-CIO, et al.,  Petition under 19 U.S.C. §1307 concerning the Xinjiang Uyghur Autonomous Region of China (August 28, 2020).  Ten organizations submitted a petition under Section 307 of the Tariff Act to Customs and Border Protection in August 2020, requesting that CBP issue a Withhold Release Order against all cotton and cotton-made products from the Xinjiang Autonomous Uighur Region in China. This petition was based on credible evidence that Uighur and other Turkic and Muslim minorities are being forced to work in internment centers and prisons to produce cotton and cotton products. The petition resulted in several limited WROs in 2020, and a broad regional WRO in January 2021.

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.  Legislative Developments in the European Union Involving Mandated Business and Human Rights Due Diligence

Edited by Martijn Scheltema

General

The European Commission has published a proposal for legislation on Human Rights and Environmental Due Diligence (HRDD). It is a directive which means that it has to be transposed into national laws of EU member states. It is not expected to be implemented before 2027.

Scope of due diligence

Article 4(1) holds that the due diligence process should include all six steps defined by the OECD Due Diligence Guidance for Responsible Business Conduct and should cover the life-cycle of products. Articles 5-11 elaborate this, including an obligation: (i) of integrating due diligence in a company’s policies and update them annually (Article 5), (ii) to assess adverse risks (Article 6), (iii) to prevent potential adverse impacts (Article 7), (iv) to bring actual impact to an end (Article 8), (v) of establishing and maintaining of a complaints procedure (Article 9), (vi) of monitoring (Article 10), (vii) of communicating (Article 11). Article 15 clarifies that climate change should be addressed in an emission reduction plan and this plan should also be embedded in the financial incentives of directors.

Companies covered

Pursuant to Article 2(1)(a) and 2(2)(a) companies are governed by the proposal in and outside the EU with a minimum of 500 employees and a net turnover above € 150 million, including companies with their seat outside the EU as far as they provide products or services on the European market as well as according to Article 2(1)(b) and 2(2)(b) companies with more than 250 employees and a net turnover above € 40 million of which at least 50% was generated in high-impact sectors. Thus, the proposal has a clear extraterritorial effect.

Public supervision

Articles 17 and 18(1) hold that member states should designate one or more national independent supervisory authorities with appropriate powers and financing. These bodies should pursuant to Article 18(2) be entitled to carry out investigations on their own initiative or based on complaints or substantiated concerns mentioned in Article 19.

Civil liability

Article 22 holds that in order to ensure effective compensation for victims, member states should implement civil liability for non-compliance. Pursuant to Article 22(1) companies should be liable if they failed to comply with the obligations to prevent and mitigate potential adverse impacts to an end and minimize their extent and as a result of that failure an adverse impact occurred that should have been identified, prevented or mitigated, brought to an end or its extent minimized through the appropriate measures and led to damage. Article 22(2) clarifies that if damage occurred at the level of established indirect business relationships a company is not liable if it carried out specific due diligence measures.

Directors’ duties

Article 25 holds that directors owe a duty of care to a company. This article lays down that that this general duty includes a duty to take into account sustainability matters, including human rights, climate change and environmental consequences in the short, medium and long-term horizons. 

Observations regarding the proposal

The proposal has elicited several comments already. See e.g. The Observations of the UN Working Group; the observations of the Danish Institute; Shift, International Federation for Human Rights, Corporate accountability: EU must not squander historic opportunity to tackle environmental crisis, human rights abuses; and, Amnesty International, EU: Due Diligence Proposal ‘a Missed Opportunity’.

The reader may also wish to examine the following background papers: 

  1. Lise Smit, et al., Study on Due Diligence Requirements through the Supply Chain (European Commission, January 2020).  The European Commission engaged the authors-- recognized experts in international humanitarian law—to perform this study.  Their work involved an extensive EU and worldwide survey of businesses, NGOs, academics and regulators on current practices and stakeholder attitudes regarding human rights and environmental due diligence in supply chains.   Notably, the survey reveals a general consensus that existing regulatory requirements are inadequate for the protection of human rights and the environment in global supply chains and the authors recommend a wide range of possible regulatory options for consideration by the Commission. 
  2. European Parliament, Resolution of 10 March 2021 (2020/2129(INL)). The European Parliament has passed a resolution containing its comprehensive suggestions for the new due diligence legislation.  The resolution signals that the globalisation of economic activity has aggravated adverse impacts of business activities on human rights, including social and labour rights, the environment and the good governance of states and human rights violations often occur at primary production level. It emphasizes that undertakings should respect human rights which include rights to an effective remedy but observes only 37% of business currently conducts human rights due diligence. It urges the European Commission to strengthen supply chain traceability and to develop a broad mandatory due diligence framework.  An annex contains suggested language for the new legislation.
  3. UN Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Letter to Didier Reynders, EU Commissioner for Justice (October 22, 2020).  The recommendations of the UN Working Group emphasize the need to ground the upcoming EU legislation on UN Guiding Principles and point out in detail how requirements such as those mentioned above would accomplish that end.   
  4. Cees van Dam, et al., Options for Enforceable International Responsible Business Conduct, chapter 6.  Elaboration of a new type of public supervision. Dynamic supervision is based on existing best practices in markets which have at least partially matured. It is dynamic as these best practices are not fixed but change over time.

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

Edited by Douglass Cassel

Although corporate tort liability for transnational human rights abuses has occupied courts in North America and Europe for a quarter of a century, recent trends outside the U.S. suggest an increasing likelihood of companies being held to a duty of care 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.  In Nestle v. Doe and Cargill v. Doe, consolidated nos. 19-416 and 19-453, decided June 18, 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.  However, 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.)

In contrast to this retreat in the U.S., potential corporate tort liability for transnational human rights abuses has recently been expanded by the Supreme Courts of Britain and Canada, and by courts of appeals 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 2019 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 recently 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.

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 VedantaOguru 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, 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 are linked below.  Views expressed represent only his personal views, not those of the ABA or the Center.

  1. Douglass Cassel, Suing Corporations for Violations of International Law: A Step Forward, Opinio Juris, June 28, 2021.
  2. 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://media.business-humanrights.org/media/documents/Okpabi_analysis_2.17.21.pdf
  3. 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/
  4. 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/.
  5. 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 at https://www.cambridge.org/core/journals/business-and-human-rights-journal/article/abs/outlining-the-case-for-a-common-law-duty-of-care-of-business-to-exercise-human-rights-due-diligence/0AC3AC3B131615011C802628A1750408.  (Fee or subscription required to access.)
  6. Douglass Cassel, Suing Americans for Human Rights Torts Overseas: The Supreme Court Leaves the Door Open89 Notre Dame Law Review 1773-1812 (2014), available at http://ndlawreview.org/wp-content/uploads/2013/05/NDL410.pdf).  
  7. 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/cgi/viewcontent.cgi?article=1075&context=njihr.

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, 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 drafts; a fourth draft is expected by August of 2021. 

Diplomatic prospects for the treaty are highly uncertain.  Serious engagement by UN member States has been scant.  The United States has to date opposed and boycotted the process.  The European Union has deferred taking a substantive position, at least until its internal procedure to develop a potential directive on mandatory human rights due diligence is clarified.  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.

The ABA has endorsed the UN Guiding Principles.  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.)

Second, on behalf of the Center, Professor Cassel has monitored the treaty process, attending the annual meetings of the Intergovernmental Working Group and reporting to the Center’s advisory committee 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.  Additional documents and commentaries will be posted in the near future.

  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, Progress in the Newest UN Draft Treaty on Business and Human Rights, Business and Human Rights Resource Centre (August 25, 2020).
  3. Douglass Cassel, Five ways the new draft treaty on business and human rights can be strengthened, Business and Human Rights Resource Centre (Septenber 9, 2019).
  4. Douglass Cassel, Ecuador’s Revised Draft Treaty: Getting Down to Business, Business and Human Rights Resource Centre (September 3, 2019).
  5. 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).
  6. Douglass Cassel, Draft UN treaty on business & human rights focuses on prevention & remedy while ensuring state control of its implementationBusiness and Human Rights Resource CentreAugust 2, 2018.
  7. The Third Session of the UN Intergovernmental Working Group on a Business and Human Rights Treaty, 3 Business and Human Rights Journal 277-283 (2018) (requires fee or journal subscription).
  8. 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 22, 2017).
  9. Douglass Cassel, Treaty Process Gets Underway: Whoever Said It Would Be Easy?blog post for Business and Human Rights Resource Centre (July 12, 2015).
  10. Douglass Cassel and Anita Ramasastry, Anatomy of a business and human rights treaty, Institute of Human Rights and Business (June 25, 2015). 

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 is 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, 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:

  1. The Hague Rules of Business and Human Rights Arbitration (The-Hague-Rules-on-Business-and-Human-Rights-Arbitration_CILC-digital-version.pdf). This document contains an introduction to the Rules, the Rules themselves as well as extensive commentary on each norm and an Annex with Model Clauses.
  2. A set of questions and answers concerning the Hague Rules (https://www.cilc.nl/cms/wp-content/uploads/2021/05/QA-The-Hague-Rules.pdf). This document answers common questions on the Hague Rules, such as why businesses and those affected by their operations would agree to use arbitration under the Hague Rules, in what kinds of situations can arbitration under the Hague Rules be used, how to bring a case, and many more.
  3. For more background information on the stakeholder consultations, the versions of the drafts and the launch, see The Hague Rules on Business and Human Rights Arbitration | CILC website.

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

  1. Brigitta John, The Hague Rules on Business and Human Rights Arbitration, Global Arbitration News, April 21, 2020, https://globalarbitrationnews.com/the-hague-rules-on-business-and-human-rights-arbitration/. This Blog entry describes the rules in more detail.
  2. Anne van Aaken and Diane Desierto, The Hague Rules on Business and Human Rights Arbitration, Columbia FDI Perspectives, No. 304 May 3, 2021, https://ccsi.columbia.edu/sites/default/files/content/docs/fdi%20perspectives/No%20304%20-%20van%20Aaken%20and%20Desierto%20-%20FINAL.pdf. This short article gives the background to the rules, its main content and shows possible applications.
  3. Diane Desierto, Why Arbitrate Business and Human Rights Disputes, EJIL:Talk!, July 12, 2019, https://www.ejiltalk.org/public-consultation-period-until-august-25-for-the-draft-hague-rules-on-business-and-human-rights-arbitration/.  This short article focuses on the policy and legal rationale of using arbitration as an effective remedy for business and human rights disputes.
  4. Bhavya Mahajan, New Kid on the Block: An Introduction to the Hague Rules on Business and Human Rights Arbitration, 22 CARDOZO J. CONFLICT Resol. 221 (2021), https://static1.squarespace.com/static/60a5863870f56068b0f097cd/t/60a5a6409c566c58976a0c94/1621468736722/Mahajan_Article.pdf. This longer article analyzes the existing gap in remedies for human rights abuses by business, and examines the key features of the Hague Rules.
  5. Tamar Meshel, International Arbitration: The New Frontier of Business and Human Rights Dispute Resolution? " 44 Dal LJ 101 (2021), https://digitalcommons.schulichlaw.dal.ca/dlj/vol44/iss1/12/. This article compares the 2013 Accord on Fire and Building Safety in Bangladesh and the Hague Rules and holds that international arbitration may provide a valuable nonjudicial alternative that supplements other domestic and international initiatives.

Articles, blogs and other document relating to the Hague Rules are being assembled at the following Google Scholar site: https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=hague+rules+on+business+and+human+rights+arbitration&btnG=

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 June 8, 2023) 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. 2018 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on its mission to Canada: This report provides an account of the 2017 Working Group on the issue of human rights and transnational corporations and other business enterprises’ visit to Canada. The report gives an in-depth review of Canada’s domestic and international perspectives and practices on BHR.
  2. Please note that the link to 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. 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. 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 nine conventions underlying the ILO’s Fundamental Declaration, as set out below:
    1. Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
    2. Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
    3. Forced Labour Convention, 1930 (No. 29)  (and its 2014 Protocol)
    4. Abolition of Forced Labour Convention, 1957 (No. 105)
    5. Minimum Age Convention, 1973 (No. 138)
    6. Worst Forms of Child Labour Convention, 1999 (No. 182)
    7. Equal Remuneration Convention, 1951 (No. 100)
    8. Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
    9. Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187
    10. On January 30, 2023, Canada also ratified the ILO’s Convention 190, Violence and Harassment Convention, 2019 (C190).
  2. The Canadian Ombudsperson for Responsible Enterprise (CORE) reviews 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 from April 1, 2021 to March 31, 2022, summarizing its major activities throughout the 2021/2022 reporting period.
    3. In its third quarter 2022-2023 report, CORE found that a complaint alleging a violation of the right to a living wage by two Canadian garment companies operating in Bangladesh was admissible. CORE also noted in its fourth quarter 2022-2023 report that another complaint alleging violation on the right to freedom of assembly and association in the garment industry in Honduras was admissible. Both complaints moved to the initial assessment stage.
  3. Recent Canadian legislative developments related to international human rights norms include the following:
    1. On May 11, 2023, Bill S-211, An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff received Royal Assent and will come into force on January 1, 2024. The Act will be Canada’s first legislation aimed at preventing and reducing the risk of forced and child labour in supply chains. When in force, the Act will require applicable businesses 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. In line with this development, 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 Bill S-211 and require companies to take steps to identify and remedy human rights issues in their supply chains.
    2. 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.
    3. 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 this future economy.        
  4. 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. 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) at the regional level; and
    3. the Canada-Colombia Agreement on Labour Cooperation at the bilateral level.
  5. 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;
    3. Canada-India Comprehensive Economic Partnership Agreement; and
    4. Canada-ASEAN Free Trade Agreement.
  6. Pursuant to Canada’s obligations under the CUSMA, Canada has implemented an import ban on goods 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 government 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 recent 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. Das v. George Weston Limited, 2017 ONSC 4129, 2018 ONCA 1053
    3. Garcia v Tahoe Resources Inc., 2015 BCSC 2045, 2017 BCCA 39, 2017 CanLII 35114
    4. Choc v Hudbay Minerals Inc., 2013 ONSC 1414 , 2020 ONSC 415
  3. 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.
  4. 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. 

 

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.