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Wednesday, November 28 • 3:00pm - 4:45pm
New perspectives on overcoming hurdles for parent company liability?

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Interpretation is provided into Spanish

Session led by the UN Working Group on Business and Human Rights 

Brief description
In many cases of business-related human rights abuses, it becomes necessary for affected individuals and communities to seek remedies against a parent company for abuses by its subsidiaries. However, the current legal principles governing the allocation of responsibility among companies of a corporate group do not generally allow victims to hold a parent company accountable even in legitimate cases. This is one of the well-documented barriers faced by victims in seeking access to effective remedies. The Commentary to Principle 26 also acknowledges that the “way in which legal responsibility is attributed among members of a corporate group under domestic criminal and civil laws facilitates the avoidance of appropriate accountability”.
In recent years, courts in certain jurisdictions like the United Kingdom and Canada have ruled that in certain circumstances a parent company may owe a direct duty of care towards employees of its subsidiaries or communities affected by its subsidiaries. How useful could this tortious principle be in making parent companies accountable in the full range of business-related human rights abuses cases? Or are other reforms – including of corporate laws – needed to ensure a fair allocation of responsibility among companies of a corporate group? Principle 3(b) of the UNGPs, for example, provides that states should ensure that “laws and policies governing the creation and ongoing operation of business enterprises, such as corporate law, do not constrain but enable business respect for human rights”.

Session objectives
This session aims to: (i) inquire rationales behind the divide between the “legal separation” among companies of a group and the “economic unity”; (ii) assess the potential and limits of the direct duty of care principle in holding parent companies accountable for human rights related to their subsidiaries; and (iii) explore other law-cum-policy reform options that could assist victims in seeking effective remedies against parent companies in appropriate cases.

Discussion questions
To achieve the above objectives, the following illustrative questions will guide the discussion:
  1. Should companies of a group be allowed to operate as “one” and “separate” at the same time?
  2. What lessons can businesses and affected communities learn from cases concerning the direct duty of care decided so far in the UK and Canada? Are there similar precedents in other jurisdictions?
  3. What are the limitations of the current direct duty of care test developed by courts? What challenges lawyers face in establishing such a duty of care on the part of parent companies?
  4. Apart from tort law, could we learn any lessons from rules concerning attribution of liability within corporate groups under other laws such as tax law, competition law, terrorism law and cyber law?
  5. Would mandatory human rights due diligence help in establishing the direct duty of care and in turn holding a parent company accountable for human rights abuses related to its subsidiaries?
  6. What legal or policy reforms could encourage parent companies to identify, prevent and mitigate human rights risks associated with the operations of their subsidiaries?

Format of the session
This session will be organised as an interview-style discussion with panellists. After an initial round of questions posed to the panellists by the moderator, participants will be invited to ask questions or make general comments about the session theme.


Moderator/ Introductory Remark...
avatar for Surya Deva

Surya Deva

Chairperson, UN Working Group on Business and Human Rights
Mr. Surya Deva is an Associate Professor at the School of Law of City University of Hong Kong. He holds BA (Hons), LLB and LLM from the University of Delhi and a PhD from Sydney Law School, and has taught previously at the University of Delhi and at the National Law Institute University... Read More →

Speakers
avatar for Monica Feria-Tinta

Monica Feria-Tinta

Barrister, 20 Essex Street Chambers
Monica is a barrister (an advocate specialising in courtroom advocacy and litigation), a specialist in public international law. Her practice covers the full spectrum of public international law areas including, state responsibility, environmental law, human rights, investment law... Read More →
avatar for Daniel Leader

Daniel Leader

Partner, Leigh Day
Daniel Leader is a Barrister and Partner in the International Department of Leigh Day and specialises in international claims, group actions, environmental and human rights law.Over the past 25 years Leigh Day has been involved in ground breaking cases on behalf of victims from the... Read More →
avatar for Sor Rattamanee Polkla

Sor Rattamanee Polkla

Executive Coordinator, Community Resource Centre Foundation
Sor.Rattanamanee Polkla’s career spans the past nineteen years of public interest lawyering in Thailand, and she has been involved in many of its most significant recent cases. After working for years as an independent public interest lawyer, in 2010 she co-founded with Prashant... Read More →
avatar for James Yap

James Yap

Special Counsel, Camp Fiorante Matthews Mogerman LLP
I will be addressing this topic from a Canadian perspective, largely through the lens of my experience as a lawyer for the plaintiffs in Araya v. Nevsun Resources Ltd, a lawsuit over the use of forced labor and torture at a Canadian-owned mine in Eritrea.


Wednesday November 28, 2018 3:00pm - 4:45pm
Room XXIII