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Access to remedy [clear filter]
Wednesday, November 28

10:00am CET

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, 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

3:00pm CET

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

Vice-Chair, UN Working Group on Business and Human Rights

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, Lawyer, Community Resource Centre Foundation
Sor.Rattanamanee Polkla’s career spans the past twenty 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 Singh... 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 CET

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