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Wednesday, November 28 • 10:00am - 11:20am
Accountability and Remedy: human rights due diligence and corporate legal liability

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Interpretation is provided into Spanish. 

Organized by OHCHR

Brief description of the session:
This session will discuss the relationship between human rights due diligence and determinations of corporate legal liability under national law for business-related human rights abuses. The OHCHR’s Accountability and Remedy Project Part I, an initiative aimed at strengthening implementation by States of the Access to Remedy Pillar of the UNGPs, identified a need for greater clarity about the different ways in which the exercise of human rights due diligence and corporate legal liability may interrelate. In June 2018, OHCHR published a report providing analysis and clarification of the relationship between human rights due diligence and determinations of corporate liability. The session will introduce the discussions and conclusions from this report.
 The session will also draw on the Working Group’s 2018 report to the General Assembly, where it takes stock of efforts to implement human rights due diligence. Further, the session will review recent legislative and policy developments, explore questions that arise when thinking about how human rights due diligence and liability interact, and discuss ways to improve policy coherence between States’ implementation of the access to remedy pillar of the UNGPs and their efforts to promote human rights due diligence among business enterprises in accordance with the UNGPs.

Session objectives:
  • Unpack the relationship between human rights due diligence as described in the UNGPs, and determinations of corporate legal liability for business-related human rights offenses.

Key discussion questions:
  • In what ways are determinations of legal liability currently influenced by companies’ exercise of human rights due diligence?
  • When should States require companies to conduct human rights due diligence through legislation?
  • What other measures may provide effective incentives for companies to conduct meaningful human rights due diligence as opposed to ‘check-box’ exercises?

Format of the session:
  •  Roundtable discussion

Background to the discussion:
Under the UNGPs, “human rights due diligence” refers to the processes and activities by which businesses reasonably identify, prevent, mitigate, and account for how they address their adverse human rights impacts. Human rights due diligence is integral to meeting the corporate responsibility to respect human rights, and the UNGPs provide important guidance as to the key elements of human rights due diligence and the basic standards that should be observed. However, despite the centrality of human rights due diligence in the UNGPs, there remain many different views as to what is entailed and how this intersects with legal liability in law and practice.
 The work carried out in the course of OHCHR’s Accountability and Remedy Project Part I (ARP I) highlights the need for human rights due diligence concepts to be appropriately integrated into relevant domestic law regimes and for relevant State agencies and judicial bodies to have access to, and take regulatory and enforcement decisions by reference to, robust and credible guidance and standards. Following up on the ARP I report, OHCHR organized a consultation in October 2017 to further unpack the relationship between human rights due diligence and determinations of legal liability. A report was developed following this consultation which explores regulatory options that exist for improving corporate accountability in business and human rights cases, and discusses risks and opportunities of different approaches. The report also explores some of the difficult questions that arise when thinking about how human rights due diligence and legal liability interact, such as whether there are circumstances in which failure to carry out human rights due diligence itself should be cause for liability, even if no harm can be shown to have occurred. This Forum session provides an opportunity to take stock of current State approaches and recent legal developments, and to discuss how and when a failure to exercise human rights due diligence can give rise to corporate liability.

Moderator/ Introductory Remark...
avatar for Lene Wendland

Lene Wendland

Chief, Business and Human Rights, OHCHR
Lene Wendland is Chief of the Business and Human Rights Unit in UN Human Rights. She was part of the team of former Special Representative of the UN Secretary-General on Business and Human Rights, Professor John Ruggie, and contributed to the development and drafting of the UN Guiding... Read More →

avatar for Sarah Ellington

Sarah Ellington

Dispute resolution lawyer, DLA Piper
Sarah has over 10 years’ experience resolving disputes using both formal and informal mechanisms for governments, governmental agencies and international organisations, as well as multinational corporations.Sarah advises clients across a number of sectors on risk management and... Read More →
avatar for Githu Muigai

Githu Muigai

Member, UN Working Group on Business and Human Rights
Mr. Githu Muigai is current Associate Professor of Law, Department of Public Law, University of Nairobi; Chairman at the Council of Legal Education in Kenya; and Senior Partner, Mohammed & Muigai Advocates. He previously served as a Commissioner with the former Constitution of Kenya... Read More →
avatar for Gabriela Quijano

Gabriela Quijano

Legal Adviser, Business and Human Rights, Amnesty International - International Secretariat
avatar for Jennifer Zerk

Jennifer Zerk

Legal Consultant, OHCHR Accountability and Remedy Project

Wednesday November 28, 2018 10:00am - 11:20am CET