scholarly journals Vedanta Resources Plc and Another v. Lungowe and Others

2020 ◽  
Vol 114 (1) ◽  
pp. 110-116
Author(s):  
Tara Van Ho
Keyword(s):  
Human Rights ◽  
Duty Of Care ◽  
Due Diligence ◽  
The United Kingdom ◽  
Copper Mines ◽  
Public Disclosures ◽  
Negative Impacts ◽  
The Right ◽  
Parent Companies ◽  
Human Rights Due Diligence

In Vedanta v. Lungowe, the United Kingdom Supreme Court determined that civil claims for negligence brought by Zambian claimants against an English parent company (Vedanta) and its Zambian subsidiary (Konkola Copper Mines plc (KCM)) for damages experienced in Zambia can proceed in English courts. While framed as a domestic tort law case, the decision is significant for international efforts aimed at holding businesses accountable for their “negative impacts” on human rights. Writing for a unanimous Court, Lord Briggs's judgment hinged narrowly on the right of victims to access substantial justice. More broadly, Lord Briggs suggested that parent companies that hold themselves out in public disclosures as overseeing the human rights, environmental, social, or labor standards employed by their subsidiaries assume a duty of care to those harmed by the subsidiary. This suggestion has the potential to transform current corporate approaches to human rights due diligence and accountability.

scholarly journals Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence

2016 ◽  
Vol 1 (2) ◽  
pp. 179-202 ◽  
Author(s):  
Doug CASSEL
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Other ◽  
Duty Of Care ◽  
Human Rights Violations ◽  
Due Diligence ◽  
Business And Human Rights ◽  
Other Hand ◽  
A Company ◽  
Human Rights Due Diligence

AbstractThis article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals

2019 ◽  
Vol 4 (02) ◽  
pp. 265-286 ◽  
Author(s):  
Dalia PALOMBO
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Parent Company ◽  
Recent Case ◽  
Duty Of Care ◽  
Due Diligence ◽  
French Law ◽  
Legislative Proposals ◽  
The Uk ◽  
Parent Companies

AbstractIn 2017, France established a due diligence statutory obligation for French parent companies to monitor extraterritorial human rights and environmental abuses committed by their off-shore affiliates. Switzerland is also considering adopting a similar law for Swiss parent companies. These obligations are comparable to the duty of care that, according to recent case law, British parent companies owe towards their subsidiaries’ neighbours. This article compares and contrasts the newly introduced French due diligence statutory obligation, the UK precedents, and two alternative Swiss legislative proposals on the due diligence and duty of care of parent companies.

The UN Guiding Principles’ Orbit and Other Regulatory Regimes in the Business and Human Rights Universe: Managing the Interface

2021 ◽  
pp. 1-16
Author(s):  
Surya DEVA
Keyword(s):  
Human Rights ◽  
Due Diligence ◽  
Legal Norms ◽  
Business And Human Rights ◽  
Starting Point ◽  
Direct Duty ◽  
Regulatory Regimes ◽  
Guiding Principles ◽  
Parent Companies ◽  
Human Rights Due Diligence

Abstract What should be the interface of the United Nations Guiding Principles on Business and Human Rights (UNGPs) with other regulatory regimes in the business and human rights (BHR) universe? This article explores this issue in relation to two specific contexts. First, the interface of ‘social norm’ with evolving ‘legal norms’: relation of Pillar II of the UNGPs and mandatory human rights due diligence (HRDD) laws as well as parent companies’ direct duty of care for negligence. Second, the interface of ‘soft norms’ and evolving ‘hard norms’: how the UNGPs should inform the proposed BHR treaty. It is argued that legal norms should align with Pillar II only in a ‘loose manner’. They should draw from and build on the HRDD concept under Pillar II, but not be constrained by it, because a hard alignment of Pillar I laws with Pillar II could undercut the independent but complementary status of the two pillars. Moreover, the UNGPs should serve only as a ‘starting point’ and not the ‘end point’ in the evolution of other hard or soft norms in the future. Such an approach would be desirable because the UNGPs alone are unlikely to be enough to challenge or confront the existing structure of irresponsibility and inequality.

Corporate Liability Design for Human Rights Abuses: Individual and Entity Liability for Due Diligence

2020 ◽  
Author(s):  
Nick Friedman
Keyword(s):  
Economic Theory ◽  
Human Rights ◽  
Policy Implications ◽  
Global Supply Chains ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Human Rights Norms ◽  
Corporate Liability ◽  
Human Rights Due Diligence ◽  
Individual Human

Abstract In this article, I critically review the economic theory of corporate liability design, focusing on the allocation of liability between a corporation and its individual human agents. I apply this theory to transnational commercial contexts where human rights abuses occur and assess the likely efficacy of some putative liability regimes, including regimes requiring corporations to undertake human rights due diligence throughout their global supply chains. I advance a set of general considerations justifying the efficacy of due diligence in relation to alternative liability regimes. I argue, however, that due diligence regimes will likely under-deter severe human rights abuses unless they are supported by substantial entity-level sanctions and, in at least some cases, by supplementary liability for individual executives. The analysis has significant policy implications for current national and international efforts to enforce human rights norms against corporations.

Establishing a Corporate Responsibility Ombudsman: Enhancing remedy through state-based non-judicial mechanisms?

2021 ◽  
Vol 28 (1) ◽  
pp. 102-122
Author(s):  
Juho Saloranta
Keyword(s):  
European Union ◽  
Human Rights ◽  
Corporate Responsibility ◽  
Decision Makers ◽  
Sufficient Evidence ◽  
Export Credit ◽  
Due Diligence ◽  
The European Union ◽  
Credit Financing ◽  
Human Rights Due Diligence

This article assesses the efficiency of non-judicial grievance mechanisms in providing victims of corporate human rights violations with improved access to remedy. As no such mechanism is currently available, this article formulates a proposal for a new mechanism in the form of a corporate responsibility ombudsman, which would offer a great deal of flexibility as well as being an inexpensive, expeditious and informal manner of dealing with such issues. The article argues in favour of utilizing states’ regulatory arsenal to improve victims’ access to remedy extraterritorially. Based on recent international developments, I elaborate approaches to human rights due diligence regulation and export credit financing by means of two corporate responsibility ombudsman proposals. In relation to these proposals, I divide the effectiveness criteria of Principle 31 of the United Nations Guiding Principles into three main categories: empowerment, investigation and enforcement. Since obtaining sufficient evidence is of paramount to those seeking remedies for violations of corporate responsibility, states should bestow quasi-judicial powers on corporate responsibility ombudsmen to achieve efficiency, which could also create legitimacy. This article provides decision-makers and scholars with insights into how access to remedy could be synchronized with the momentum of human rights due diligence legislation in the European Union and beyond.

From a Stark Utopia to Everyday Utopias

2018 ◽  
Vol 60 (1) ◽  
pp. 575-606
Author(s):  
Michelle Staggs Kelsall
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Transnational Corporations ◽  
Public Domain ◽  
Due Diligence ◽  
Karl Polanyi ◽  
Business And Human Rights ◽  
Human Rights Council ◽  
The United Nations ◽  
Human Rights Due Diligence

This article considers the emergence of the Business and Human Rights agenda at the United Nations (UN). It argues that the agenda can be seen as an example of the UN Human Rights Council attempting to institutionalise everyday utopias within an emerging global public domain. Utilising the concept of embedded pragmatism and tracing the underlying rationale for the emergence of the agenda to the work of Karl Polanyi, the article argues that the Business and Human Rights agenda seeks to institutionalise human rights due diligence processes within transnational corporations in order to create a pragmatic alternative to the stark utopia of laissez-faire liberal markets. It then provides an analytical account of the implications of human rights due diligence for the modes and techniques business utilises to assess human rights harm. It argues that due to the constraints imposed by the concept of embedded pragmatism and the normative indeterminacy of human rights, the Business and Human Rights agenda risks instituting human rights within the corporation through modes and techniques that maintain human rights as a language of crisis, rather than creating the space for novel, everyday utopias to emerge.

CONCEALED BIRTHS, ADOPTION AND HUMAN RIGHTS LAW: BEING WARY OF SEEKING TO OPEN WINDOWS INTO PEOPLE'S SOULS

2012 ◽  
Vol 71 (2) ◽  
pp. 325-354 ◽  
Author(s):  
Jill Marshall
Keyword(s):  
Human Rights ◽  
Personal Autonomy ◽  
Private Life ◽  
European Convention ◽  
Biological Father ◽  
Legal Decisions ◽  
The United Kingdom ◽  
Biological Family ◽  
The Right ◽  
Confidentiality And Privacy

AbstractAlthough rare, giving birth in secret or in concealed circumstances still happens in the United Kingdom. The new born child's existence is unknown to his or her biological ‘father’ and or to the wider biological family of the birth giver who wishes to place the child for adoption without his or her existence being revealed to them. Legal decisions need to be made judicially when a local authority seeks orders as to whether it is required to make further inquiries to identify and notify the biological father and or wider biological family as to any forthcoming adoption proceedings. Developments in European human rights law's protection of a right to respect one's private life provided by Article 8 of the European Convention on Human Rights (ECHR) towards a right to personal autonomy, identity and integrity can be interpreted in different ways. However, three positions are argued here to guard against an erosion of women's confidentiality and privacy in these circumstances. First, women's choices of concealment should be accepted with respect rather than perceived as inauthentic and therefore impermissible; this is in keeping with Article 2's right to life and Article 8's right to personal autonomy and integrity. Second, the right to family life protected by Article 8 of any wider biological family and father is not contravened by allowing women to give birth discreetly. Third, openness and transparency, when it comes to exact knowledge of one's parents in this context is not necessary for a child's identity rights, which are also protected by Article 8's right to personal identity, to be legally protected.

scholarly journals Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life

2021 ◽  
pp. 1-16
Author(s):  
Kushtrim Istrefi ◽  
Cedric Ryngaert
Keyword(s):  
Human Rights ◽  
Rare Case ◽  
Legal Issues ◽  
State Responsibility ◽  
Due Diligence ◽  
Prison Sentence ◽  
Right To Life ◽  
Fourth Section ◽  
European Court ◽  
The Right

Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction). Section of the Court: Chamber (Fourth Section). Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary. Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer. Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.

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