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Access to remedy [clear filter]
Monday, November 26
 

8:00am

Conversation with the UN Working Group on Business and Human Rights
Join the members of the UN Working Group on Business and Human Rights in an informal conversation about their mandate to promote implementation of the UN Guiding Principles on Business and Human Rights and to chair the Forum.

Working Group members will give an overview of their ongoing work and explain the background for the theme of this year's Forum. The introduction will be followed by a Q&A and an opportunity for participants to make suggestions to the Working Group.

Links to Working Group main page and thematic pages
Interpretation is provided in Korean

Speakers
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 →
avatar for Elżbieta Karska

Elżbieta Karska

Member, UN Working Group on Business and Human Rights
Ms. Elżbieta Karska is a Professor and the Head of the Department of Protection of Human Rights and International Humanitarian Law and the Director of the Institute of International Law, European Union and International Relations at the Faculty of Law and Administration, Cardinal... 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 Dante Pesce

Dante Pesce

Chairperson, UN Working Group on Business and Human Rights
Mr. Dante Pesce holds a Masters in Political Science from the Catholic University of Chile and a Masters in Public Administration from Harvard University. He is the Founder and Executive Director of the VINCULAR Center for Social Responsibility and Sustainable Development at the... Read More →
avatar for Anita Ramasastry

Anita Ramasastry

Member, UN Working Group on Business and Human Rights
Ms. Anita Ramasastry is the Roland L. Hjorth Professor of Law and the Director of the Graduate Program in Sustainable International Development at the University of Washington School Of Law. She researches and teaches in the fields of law and development, anti-corruption, international... Read More →


Monday November 26, 2018 8:00am - 9:00am
Room XXI

6:15pm

Breathless – Documentary
Organized by Lambo Films, Storyhouse Films, Abeva and Doughty Street Chambers.

Short description of the session:
The session will be a showing of the film “Breathless” (75 mins), which is a film showing how the asbestos industry moved to take advantages of markets and laws in less developed countries and the struggle of people affected by the industry for redress. It centres on the struggle of victims in Belgium and India, where it takes the director to the largest asbestos waste dump in South Asia. The asbestos story is replicated in many other industries and reflects the difficulties in obtaining remedy in a globalised world.

Session objectives:
To illustrate through the issue of the export of asbestos how corporations have exported the most hazardous and exploitative industries to the less developed world, where people struggle to obtain a remedy, but how through such struggles change can come about. The film is linked to a crowdfunding campaign to fund litigation in India to clean up an asbestos waste dump in Central India (breathlessfund.org), which will hopefully have a wider impact in creating awareness of the hazards of asbestos in India.

Key discussion questions:
  • What has been the reaction of Eternit to the film?
  • What has been the reaction of the people in Kappelle to the film?
  • What is the role of the UN is stopping such violations from happening, Rotterdam Convention and the report of hazardous substances in the workplace.
  • What is the campaign in India to highlight the hazards of asbestos?

Format:
The film will be 75 mins followed by a discussion and a Q&A till 8pm

Moderator/ Introductory Remark...
avatar for Lene Wendland

Lene Wendland

Chief of the Business and Human Rights Unit, Office of the High Commissioner for Human Rights (OHCHR)

Speakers
avatar for Eric Jonckheere

Eric Jonckheere

President, Abeva
I became an anti-asbestos activist after losing both parents and two brothers. As an airline pilot, I am focussing my energy on the underdeveloped countries were workers are still exposed to the deadly fibers. They deserve a safe working environnement just like their children deserve... Read More →
avatar for Krishnendu Mukherjee

Krishnendu Mukherjee

Barrister and Advocate, Doughty Street Chambers
Krishnendu Mukherjee is a barrister and Indian advocate at Doughty Street Chambers in London. He has extensive experience in trying to remedy human rights violations against corporations, including advice, litigation, negotiation, and OECD complaints. He is part of the Business and... Read More →
avatar for Baskut Tuncak

Baskut Tuncak

Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardou
Mr. Tuncak is the UN Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, informally known as the Special Rapporteur on toxics. Mr. Tuncak was appointed Special Rapporteur in 2014. His mandate... Read More →



Monday November 26, 2018 6:15pm - 7:45pm
Room XXIII
 
Tuesday, November 27
 

11:30am

Role of NHRIs in facilitating access to remedy for business-related human rights impacts
Interpretation is provided into English, French and Spanish

Organized on the Working Group on businness and human rights

Background to the discussion:
The UN Guiding Principles on the Business and Human Rights (UNGPs) envisage a role for the following three types of mechanisms to provide access to effective remedy in business-related human rights abuses: state-based judicial mechanisms, state-based non-judicial grievance mechanisms (NJMs), and non-state-based grievance mechanisms. While judicial mechanisms are “at the core of ensuring access to remedy”, NJMs such as national human rights institutions (NHRIs) have “an essential role in complementing and supplementing judicial mechanisms”. Like other NJMs, NHRIs should meet the effectiveness criteria set out in Principle 31 of the UNGPs.
Building on its prior work on access to remedy (A/72/162 and A/HRC/35/33) and to complement the OHCHR’s Accountability and Remedy Project, the Working Group on Business and Human Rights (Working Group) is starting a new project to focus on the important role of NHRIs in improving access to effective remedy for business-related human rights abuses, in line with the aspirations expressed in the Edinburgh Declaration. NHRIs can facilitate access to remedy both directly (e.g., by handling complaints concerning human rights abuses by companies) and indirectly (e.g., by raising awareness, building capacity, assisting affected rights holders and recommending legal reforms).
The Working Group has recently received an explicit mandate about this project from the Human Rights Council. In July 2018, the Council (A/HRC/38/L.18) requested the Working Group “to analyse further the role of national human rights institutions in facilitating access to remedy for business-related human rights abuses, and to convene a two-day global consultation on these issues, open to all stakeholders, and to inform the Council by its forty-fourth session as appropriate”.

Session objectives:
The session aims to achieve the following objectives:
  • to gain a better understanding of the existing mandates, policies and practices of NHRIs concerning access to remedy for business-related human rights abuses;
  • to know more about the challenges and limitations that NHRIs face in dealing with business-related human rights abuses; and
  • to discuss steps that could be taken to strengthen the role of NHRIs in providing effective remedies for business-related human rights abuses, especially in cases with a transnational dimension.

Session format 
The session will be organised as an interactive dialogue with NHRIs and other stakeholders. There will not be any panel: rather, all interested speakers will offer brief remarks from the floor. The dialogue will be facilitated by Mr Surya Deva, the Working Group member leading this project, who will keep a list of speakers.
Discussion questions 
Speakers may share information about one or more of the following questions:
  • Does your NHRI have a mandate to investigate or conduct inquiry about alleged human rights abuses by businesses?
  • Does your NHRI have an explicit mandate to handle complaints concerning alleged business-related human rights abuses?
  • What types of remedies could your NHRI offer to individuals or communities harmed by businesses?
  • What are the three most critical challenges that your NHRI has experienced in providing access to effective remedies in business-related human rights abuses?
  • How does your NHRI deal with complaints which have a transnational dimension?
  • Can you share any good practice examples in which your NHRI was able to facilitate, directly or indirectly, effective remedies for business-related human rights abuses?

How to participate:
NHRI representatives or other interested stakeholder who wish to participate in the dialogue are invited to pre-register by sending an email to mgarciatorrente@ohchr.org with cc to forumbhr@ohchr.org by including in the subject line:
“Dialogue with NHRIs – [NHRI name]”.
The speaking time allocated to each NHRI will depend on the number of requests received (information on this will be provided closer to the Forum). All NHRIs will, however, be able to submit a statement to be posted on the project webpage.  
Deadline: 20 November 2018

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
AB

Aishah Bidin

Commissioner, Human Rights Commission of Malaysia (SUHAKAM)
Human Rights Commissioner and Law Professor at the National University of Malaysia. Corporate Law , human rights and energy law
avatar for Roberto Cadiz

Roberto Cadiz

Commissioner, Philippines Commission on Human Rights
Commissioner Eugenio Roberto T. Cadiz is the focal commissioner for Business and Human Rights; Environment; Suffrage and Civic Participation; International Humanitarian Law; Human Rights Defenders; Peace; and Sustainable Development Goals, at the Commission on Human Rights (CHR) of... Read More →
avatar for Angkhana  Neelapaijit

Angkhana Neelapaijit

Commissioner, National Human Rights Commission of Thailand (NHRCT)
Angkhana  Neelapaijit was born in Bangkok, Thailand where she grow up and graduated from Santa Cruz Convent school and the Faculty of Nurse, Mahidol University. Angkhana became the Human Rights activist after her husband who is a prominent Human Rights Lawyer was kidnapped by a group... Read More →
avatar for Tuenjai Deetes

Tuenjai Deetes

Commissioner, National Human Rights Commission of Thailand (NHRCT)
Tuenjai Deetes or "Kru Daeng" (Techer Daeng) graduated from the Faculty of Political Sciences, Chulalongkorn University, Thailand in 1974, then she had joined the Gradute Volunteer Program, Thammasat University, during 1974-1976. She started to be a "hill teacher" at Pangsa Villages... Read More →
RU

Rev. Usman J. Fornah

Chairperson, Human Rights Commission of Sierra Leone (HRCSL)
JK

JHO Kyoung-Jae

Deputy Director, National Human Rights Commission of Korea
SM

Sarah McGrath

Director, International Engagement, Business and Human Rights, Australian Human Rights Commission
avatar for Carlos Alfonso Negret Mosquera

Carlos Alfonso Negret Mosquera

Ombudsman, Defensoría del Pueblo de Colombia
Peace Process and Post ConflictHuman Rights DefendersFieldworkBusiness and Human Rights
avatar for Jan-Christian Niebank

Jan-Christian Niebank

Policy Adviser, German Institute for Human Rights
Jan-Christian Niebank is a researcher and policy adviser in the international department of the German Institute for Human Rights. His main areas of expertise include business and human rights, human rights-based development policy, human rights as a criterion for the licensing of... Read More →
AS

Ambuj Sharma

Secretary General, National Human Rights Commission of India
avatar for Prakairatana Thontiravong

Prakairatana Thontiravong

chair of the Working Group on Business and Human Rights and SDGs, National Human Rights Commission of Thailand (NHRCT)
Prakairatana Thontiravong is the Commissioner of the National Human Rights Commission of Thailand. Her mandate is covering the Economic, Social and Cultural Rights and Human Rights Education. She also the Chair of the Working Group on Business, Human Rights and SDGs within the NHRCT... Read More →


Tuesday November 27, 2018 11:30am - 1:00pm
Room XXI

1:30pm

Due diligence and remedy: Is one possible without the other?


Organized by Amnesty International, SOMO, Clean Clothes Campaign, Sherpa, OECD Watch, PODER, Rights and Accountability in Development (RAID), Global Witness

In this panel, community members from Tanzania and Mexico and workers from Pakistan impacted by corporate human rights abuses join human rights experts to explore the relationship between due diligence and remedy. Is facilitating remedy a part of a company’s due diligence responsibility? Should remedy be left to companies? What is the role of the state? Is a company’s failure to ensure remedy a failure of due diligence? Why is a guarantee of effective remedy essential to assure meaningful due diligence? How must remedy outcomes feedback to improve due diligence practices? What responsibility do investors have to undertake due diligence and ensure remedy, and what should their due diligence be?
Panellists analyse the problems arising from failures of due diligence and remedy through exploration of three case studies on corporate impacts: 
  • Gold mining in Tanzania,
  • Garment production in Pakistan, and
  • Copper mining in Mexico.
Next, panellists propose policy solutions to strengthen the effectiveness of due diligence and remedy through the use of hard and soft law tools and improved investor due diligence.

Moderator/ Introductory Remark...
avatar for Fernanda Hopenhaym

Fernanda Hopenhaym

Co-Executive Director, PODER

Speakers
avatar for Sandra Cossart

Sandra Cossart

Executive Director, Sherpa
Since 1 November 2017, Sandra Cossart is Sherpa’s director.Prior to this position, Sandra headed the Globalisation and Human Rights Program within Sherpa for almost 8 years. She was a leading voice on the need to change the legal framework so that legal structures would reflect... Read More →
avatar for Ivette Gonzalez

Ivette Gonzalez

Strategic Engagement Senior Associate, PODER (México)
Code words: Business and human rights,Investors, investment, pension funds, trade, IIA, FTA, gender perspective, extraterritorial obligations, human rights due dilligence, binding treatyFinancial flows, illicit financial flows, women human rights, rural communities self-determination... Read More →
DJ

Dwight Justice

GRI's Global Sustainability Standards Board
avatar for Rachel Owens

Rachel Owens

Head of EU Office, Global Witness
Rachel Owens is Head of EU Advocacy at Global Witness, an anti-corruption and human rights NGO. In 2017, she set up Global Witness’ first EU office leading and working on campaigns to introduce EU rules for mandatory investor due diligence, to crackdown on corruption in EU golden... Read More →
avatar for Ben Vanpeperstraete

Ben Vanpeperstraete

Lobby and Advocacy Coordinator, Clean Clothes Campaign
Expert in Supply Chains, Corporate Social Responsibility, Corporate Social Accountability, Business and Human Rights and Sustainable Development. Currently works at UNI Global Union and IndustriALL Global Union on Supply Chains, more specifically the ground breaking Bangladesh Accord... Read More →
avatar for Anneke Van Woudenberg

Anneke Van Woudenberg

Executive Director, Rights and Accountability in Development (RAID)
Anneke Van Woudenberg is the Executive Director of corporate watchdog NGO Rights and Accountability in Development (RAID), which she joined in March 2017. Previously she was the Deputy Africa Director at Human Rights Watch where for 14 years she led in-depth fact-finding on human... Read More →


Tuesday November 27, 2018 1:30pm - 2:45pm
Room XXIII

4:40pm

Accountability and remedy: exploring the interconnectedness of different types of grievance mechanisms
Interpretation is provided into Spanish.


Organized by OHCHR

Brief description of the session:
The goals of improved accountability and access to remedy for business-related human rights abuses are often best served by providing affected individuals and communities with a range of options for seeking redress. These options could involve judicial or non-judicial mechanisms, or, in some cases, a combination of them. In 2014, OHCHR launched the Accountability and Remedy Project (ARP), a multiyear initiative of three phases focusing on enhancing the effectiveness of, respectively, judicial mechanisms, State-based non-judicial grievance mechanisms, and non-State-based grievance mechanisms. The overall aim of this project is to identify practical measures that can be taken to improve corporate accountability and access to remedy for victims of business-related human rights abuses. In its 2017 report to the General Assembly,  the Working Group on Business and Human Rights has also stressed the importance of an ‘all roads to remedy’ approach to realizing effective remedy for rights-holders.

This session will explore the interconnectedness of different types of grievance mechanisms, drawing from the three phases of ARP and the Working Group’s 2017 report. It will discuss how States can develop a legal and regulatory environment that enables the various types of grievance mechanisms to make a positive collective contribution to accountability and remedy, with a particular focus on the interfaces between non-State-based grievance mechanisms (such as operational-level grievance mechanisms) and State-based mechanisms.

Session objectives:
  • Explore the interconnectedness between the different types of grievance mechanisms: i.e. State-based judicial mechanisms, State-based non-judicial grievance mechanisms, and non-State-based grievance mechanisms.

Key discussion questions:
  • What measures can States take to improve policy coherence in relation to their different grievance mechanisms to ensure that victims have realistic and identifiable pathways to effective remedy?
  • What bearing does improved interconnectedness and policy coherence have on the prevention of harm through human rights due diligence by companies and “continuous learning?”
  • How should non-State-based grievance mechanisms (including operational-level grievance mechanisms) be situated within the overall “family” of grievance mechanisms?
  • In what circumstances is State regulatory oversight of the establishment, design and/or performance of non-State-based grievance mechanisms desirable and/or justified?
  • What kinds of communication and liaison between different types of remedial systems are needed for a well-functioning “regulatory ecosystem"?

Background to the discussion:
The right to an effective remedy is a core tenet of the international human rights system, and the need for victims to have access to an effective remedy is also recognized in the UN Guiding Principles on Business and Human Rights.

However, extensive research has shown that in cases where business enterprises are involved in human rights abuses, victims often struggle to access remedy. The challenges that victims face are both practical and legal in nature. To begin to address these challenges, OHCHR launched the Accountability and Remedy Project in 2014 with a view to contributing to a fairer and more effective system of remedies in cases of business involvement in human rights abuses.

There are currently three phases of the Project:

The third and current phase of ARP is focused on enhancing the effectiveness of non-State-based grievance mechanisms. Findings from ARP I and II have highlighted the interlinkages between the different institutions and initiatives that make up the “family” of grievance mechanisms. For instance, judicial mechanisms may be available to enforce contracts entered into following a private mediation process. In the fields of labour and consumer protection regulation, prior reference to a company-based grievance mechanism may be a condition of access to a State-based non-judicial mechanism. Additionally, State-based bodies may, and in many cases do, provide advice and support to companies in the establishment of company-based grievance mechanisms.

The “regulatory ecosystem” in which non-State-based grievance mechanisms are situated may profoundly impact their effectiveness. However, this issue has so far been little discussed. As part of its programme of work, ARP III will aim to uncover the key components of well-functioning “regulatory ecosystems” for non-State-based grievance mechanisms with a view to identifying good practices and lessons that may be replicated in multiple contexts.

Moderator/ Introductory Remark...
avatar for Lene Wendland

Lene Wendland

Chief of the Business and Human Rights Unit, Office of the High Commissioner for Human Rights (OHCHR)

Speakers
LA

Leila Al-Hayouti

Senior Societal Advisor, Total E&P
I've been working with TOTAL for over 20 year in which I held many positions in Procurement & Contracts, Logistics & Corporate Affairs. I am in the position of Senior Societal Advisor since almost 3 years at HQ.
AB

Aishah Bidin

Commissioner, Human Rights Commission of Malaysia (SUHAKAM)
Human Rights Commissioner and Law Professor at the National University of Malaysia. Corporate Law , human rights and energy law
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 →
avatar for Kindra Mohr

Kindra Mohr

Policy Director, Accountability Counsel
Kindra Mohr, Esq. oversees the Policy Advocacy program at Accountability Counsel, an organization that works with communities around the world to defend their environmental and human rights through advocacy and direct case support. Using a community-driven approach, she focuses on... Read More →
avatar for Jennifer Zerk

Jennifer Zerk

Legal consultant, OHCHR Accountability and Remedy Project
I am an independent researcher and analyst specialising in legal and policy issues in business and human rights. I am the lead legal consultant to the OHCHR's Accountability and Remedy Project. I am also an Associate Fellow in the International Law Programme at Chatham House (the... Read More →


Tuesday November 27, 2018 4:40pm - 6:00pm
Room XXIII
 
Wednesday, November 28
 

10:00am

Accountability and Remedy: human rights due diligence and corporate legal liability
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 of the Business and Human Rights Unit, Office of the High Commissioner for Human Rights (OHCHR)

Speakers
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
I am an independent researcher and analyst specialising in legal and policy issues in business and human rights. I am the lead legal consultant to the OHCHR's Accountability and Remedy Project. I am also an Associate Fellow in the International Law Programme at Chatham House (the... Read More →


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

3:00pm

New perspectives on overcoming hurdles for parent company liability?
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 Dan Leader

Dan Leader

Partner, Leigh Day lawyers
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 Rattanamanee Polkla

Sor Rattanamanee Polkla

Executive Coordinator, Community Resources Centre
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