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Access to remedy [clear filter]
Tuesday, November 27
 

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