LAZ Annual Conference 2018 Business Human Rights CSR
LAZ Annual Conference 2018 Business, Human Rights & CSR Associate Professor Andy Unger Head of the Law Division
Constitutionalism in an Age of Globalisation and Global Threats Dr Bertrand G Ramcharan Professor of International Human Rights Law, The Graduate Institute, Geneva and Chancellor of the University of Guyana
Constitutionalism in an Age of Globalisation We meet in a time of exceptional challenges for humanity … and international authority is weak. Where is the place for constitutionalism in the midst of all of this ?
Constitutionalism in an Age of Globalisation The constitutionalism of the future will have to grapple with new threats and challenges, nationally, regionally, and internationally, mindful of the phenomenon and tensions of globalisation.
Constitutionalism in an Age of Globalisation How can one ensure respect for human rights in a globalizing world? A key point of departure is that all governments should commit themselves to abide by the core international human rights conventions.
Constitutionalism in an Age of Globalisation Human rights strategies of governance apply not only to governments but to all organs of society, including corporations.
100 Largest Economies in the World 69 MNC : 31 Countries www. global justice. org. uk
The UN Charter
The Universal Declaration of Human Rights The General Assembly of the United Nations adopted the UDHR in 1948
The Universal Bill of Rights International Covenant on Civil & Political Rights & International Covenant on Economic, Social, Cultural & Social Rights adopted in 1966 & came into force in 1976
UN Sustainable Development Goals
UN Global Compact
UN Global Compact Human Rights Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and Principle 2: make sure that they are not complicit in human rights abuses. Labour Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; Principle 4: the elimination of all forms of forced and compulsory labour; Principle 5: the effective abolition of child labour; and Principle 6: the elimination of discrimination in respect of employment and occupation.
UN Global Compact Environment Principle 7: Businesses should support a precautionary approach to environmental challenges; Principle 8: undertake initiatives to promote greater environmental responsibility; and Principle 9: encourage the development and diffusion of environmentally friendly technologies. Anti-Corruption Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery.
UN Guiding Principles on Business & Human Rights On June 16 th 2011, the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights
UN Guiding Principles on Business & Human Rights
Corporate Responsibility to Respect Human Rights
Corporate Responsibility to Provide Effective Remedies
IBA Practical Guide
UN Guiding Principles on Business & Human Rights For Businesses, these create: Reputational Risks & Opportunities Litigation Risks
Reputational Risks
Litigation Risks Lungowe & Others v Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528
Konkola Copper Mine
Pollution
The Parties Claimants – 1, 826 Zambian Citizens affected by pollution and environmental damage 1 st Defendant – Vendanta Resources Plc, UK parent company of 2 nd defendant. (Employees = 19, value = £ 37 Billion) 2 nd Defendant – Konkola Copper Mines Plc, Zambian company owning and operating the mine. (Employees = more than 16, 000, Value = ‘might be in financial difficulties)
Claim against Vedanta Resources Plc That VR Plc owed a duty of care in negligence to the claimants as a result of their assumption of responsibility for ensuring that KCM’s mining operations do not cause harm to the environment or local communities (high level of control over KCM)
Test in Chandler v Cape Fours indicia of proximity: i) Business of VR and KCM are in a relevant respect the same ii) VR had superior expertise, knowledge and resources
![Test in Chandler v Cape [2012] EWCA Civ. 525 iii) VR knew or ought](http://slidetodoc.com/presentation_image_h2/58f9500b168eed41d1373a954cdbc480/image-29.jpg "Test in Chandler v Cape [2012] EWCA Civ. 525 iii) VR knew or ought")
Test in Chandler v Cape [2012] EWCA Civ. 525 iii) VR knew or ought reasonably to have known that KCM’s operations were unsafe and were discharging harmful effluent into the waterways iv) VR knew or ought to have known that KCM would rely on that superior expertise, knowledge and resources in respect of health, safety and environmental protection
Claim against KCM Claims in: Negligence, Nuisance, Rylands v Fletcher, Trespass and Liability under Zambian Statute Law
Legal Issues The applicable Law was Zambian Law The legal issue was whether the cases against Vedanta Resources Plc and Konkola Copper Mines Plc should be tried in the UK or Zambia
Decision The case against VR Plc should be tried in the UK as required by Article 4 of the Recast Brussels Regulation The ECJ decision in Owusu v Jackson confirms that a claim against a defendant domiciled in the UK must be tried in the UK (no forum non conveniens discretion)
Decision The court rejected the submission that the claim against VR Plc was an abuse of EU law because the sole object of the claim against VR Plc was to bring KCM Plc before the jurisdiction of the UK courts. The claim raised a real issue to be tried and so was not a device. It might be one of the principal purposes but was not the sole purpose in bring the claim.
Decision The court accepted that on straightforward forum non conveniens grounds the case against KCM Plc should be tried in Zambia. Both the claimants and KCM Plc are based in Zambia and the applicable law is Zambian law.
Decision The Court held that under CPR Practice Direction 6 B, para 3. 1: a) The claim against KCM had a real prospect of success b) There was a real issue to be tried against VR c) It was reasonable for the court to try that issue, d) KCM was a necessary or proper party, and e) E&W was the proper place to bring the case
Decision E&W was the proper place because the claim against Vedanta must be tried here – two trials in two countries on the same facts is ‘unthinkable’ E&W was the proper place in order to ensure access to justice – Altimo Holdings, Lubbe v Cape, Pacific International
Another Recent Case Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191 CA confirmed no Duty of care by Royal Dutch Shell to claimants affected by SPDCN oil spills
National Legislation Requires businesses over a certain size to disclose each year what action they have taken to ensure there is no modern slavery in their business or supply chains In this statement a business must describe the steps they have taken to ensure that slavery and human trafficking is not taking place in any of their supply chains or their own business, or they must disclose that they have taken no such steps
Vicarious Liability
Proposals for Binding Treaty Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights www. ohchr. org/EN/HRBodies/HRC/WGTrans. Corp/ Pages/IGWGOn. TNC. aspx See Business & Human Rights Resource Centre for Updates https: //business-humanrights. org/en/binding-treaty
Sources Constitutionalism in an Age of Globalisation and Global Threats – Dr Bernard G Ramcharan https: //datospdf. com/download/case-law-_5 a 44 d 5 aab 7 d 7 bc 422 b 9236 dc_pdf Global Justice Now - 10 biggest corporations make more money than most countries in the world combined http: //www. globaljustice. org. uk/news/2016/sep/12/10 -biggest-corporations-makemore-money-most-countries-world-combined UN OHCHR - Introduction to the Guiding Principles on Business & Human Rights http: //www. ohchr. org/Documents/Issues/Business/Introductions. Guiding. Principles_e n. pdf IBA Practical Guide on Business & Human Rights for Lawyers https: //www. ibanet. org/LPRU/Business-and-Human-Rights-Documents. aspx
Sources Lungowe & Others v Vedanta Resources Plc & Konkola Copper Mines Plc https: //www. leighday. co. uk/Leigh. Day/media/Leigh. Day/documents/Zambia/APP ROVED-JUDGMENT-in-Lungowe-and-others-v-Vedanta-Resources-Plc-and. Konkola-Copper-Mines-Plc-(13 -10 -17). pdf Okpabi & Others v Royal Dutch Shell Plc & Shell Petroleum Development Company of Nigeria Ltd https: //www. businesshumanrights. org/sites/default/files/documents/Shell%20 Approved%20 Judgmen t. pdf Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights www. ohchr. org/EN/HRBodies/HRC/WGTrans. Corp/Pages/IGWGOn. TNC. aspx
Sources PDJ Morgan, Vicarious Liability for Group Companies: the Final Frontier of Vicarious Liability? http: //eprints. whiterose. ac. uk/93303/ Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights www. ohchr. org/EN/HRBodies/HRC/WGTrans. Corp/Pages/IGWGOn. TNC. aspx Business & Human Rights Resource Centre (Treaty Negotiations Updates) https: //business-humanrights. org/en/binding-treaty
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