Access to Remedy The Forgotten Pillar www.a4id.org Delhi, India - 17 September 2016 Access to Remedy www.A4ID.com www.a4id.org

Introduction “ As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy. (UNGP 25) Article 8, Universal Declaration of Human Rights: “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Duty to protect = processes, but also outcomes Judicial, non-judicial or both Primary obligation on States – but other obligations on businesses too ” Access to Remedy www.a4id.org

Forms of Access to Remedy Non-State based mechanisms State-based mechanisms Community grievance mechanisms Regional or international bodies Non-judicial Judicial Consensual to imposed solutions Many to few beneficiaries Low cost to high cost Less to more adversarial Access to Remedy www.a4id.org

Judicial Grievance Mechanisms – State “ States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy. (UNGP 26) How might businesses commit human rights abuses? As primary perpetrators As suppliers of goods or services that are used in an abusive way As providers of information or services that have exacerbated abuse By investing or doing business in states with a poor human rights record. ” Access to Remedy www.a4id.org

Judicial Grievance Mechanisms – State Issues Cause of action Lack of causes of action related specifically to human rights abuses. Extraterritoriality Kiobel v Royal Dutch Petroleum Company – decision limiting the reach of the Alien Tort Claims Statute in the US. Forum non conveniens doctrine Court may dismiss a case on the basis another jurisdiction is more appropriate. Especially USA and Canada However - the concept has been rejected in the EU/UK – Lungowe v Vedanta; Owusu v Jackson. Other hurdles Procedural – burden of collecting evidence; time limits; delay; Substantive – inequality between parties; technical expertise; standing; inadequate remedies; language Access to Remedy www.a4id.org

Judicial Grievance Mechanisms – State Current Themes Parent company accountability International Corporate Accountability Roundtable (ICAR) – Parent Company Accountability Project. Final report released November 2015 – legislative measures recommended to disregard limited liability of parent companies in certain situations French draft bill on duty of care for parent and subcontracting companies Choc v Hudbay Minerals [2013 + ongoing] OHCHR May 2016 Report Focuses on “improving accountability and access to remedy for victims of business-related human rights abuse”. The report contains various recommendations: Corporate criminal liability in appropriate cases Access to diversified sources of litigation funding/reducing court costs The OHCHR has produced a ‘live’ paper containing illustrative examples of methods used and steps taken by states in order to achieve the recommendations. Access to Remedy www.a4id.org

Non-Judicial Grievance Mechanisms – State “ States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse. (UNGP 27) ” Range of possibilities Often ‘soft law’ – but more flexibility? All non-judicial grievance mechanisms should be legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning and based on engagement and dialogue (UNGP 31) Access to Remedy www.a4id.org

Non-Judicial Grievance Mechanisms – State Examples Ombudsman or labour dispute resolution offices These are State-supported but independent of government Intergovernmental grievance mechanisms e.g. the International Labour Organisation’s Committee on Freedom of Association OECD Guidelines for Multinational Enterprises These provide for mediation between affected persons/communities and a National Contact Point (NCP),which must be created by all OECD members but operate at the national level. National Human Rights Institutions (NRHIs) Independent institutions established to protect and promote human rights in the relevant State. Access to Remedy www.a4id.org

Non-Judicial Grievance Mechanisms – State OECD Guidelines for Multinational Enterprises Multilaterally endorsed, government-backed recommendations for companies on standards for socially and environmentally responsible corporate behaviour. Areas covered: general policies, disclosure, human rights, employment and industrial relations, environment, combating bribery All 34 OECD member countries are obliged to set up a National Contact Point (NCP) Mandate to “further the effectiveness of the Guidelines”. NCPs have a duty to provide a mechanism for resolution of specific instances for any interested party that considers a company has failed to respect the OECD Guidelines. The NCP will assess whether complaints are admissible and attempt to resolve alleged breaches through conciliation and mediation (i.e. facilitating a dialogue between the parties). No formal sanctioning power, but can report publicly – reputational consequences Access to Remedy

Non-Judicial Grievance Mechanisms – State Issues Effectiveness and outcome not guaranteed Existence of a grievance mechanism ≠ probability of a positive outcome! Independence How distinct is the host of the grievance mechanism from the interests of business? Enforceability Limits of a non-binding mechanism – company’s cooperation often required Mandate What is the mechanism’s proper function? What does the mechanism consider its own mandate to be? Consistency Different support for NHRIs between States Different interpretation of standards (e.g. OECD Guidelines) Sovereignty Home State control of extraterritorial activities of companies Access to Remedy www.a4id.org

Recent Developments - State Council of Europe Recommendation – March 2016 Council’s first inter-governmental instrument on BHR Provides guidance on the effective implementation of the UNGPs Significant attention paid to Access to Remedy – both judicial and non-judicial Recognises the need to address barriers to justice and to ensure equality of arms – including explicit reference to legal aid EU Foreign Affairs Council Conclusions – June 2016 Focus on furthering the UNGPs implementation Reaffirmed strong and active engagement to prevent abuses and ensure remedy worldwide Internal / external implications Particular emphasis on transparency, corporate responsibility to respect, and access to remedy Access to Remedy www.a4id.org

Non-judicial Grievance Mechanisms – Non-State “ States should consider ways to facilitate access to effective non-State based grievance mechanisms dealing with business-related human rights harms. (UNGP 28) To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted. (UNGP 29) Where business enterprises indentify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes. (UNGP 22) ” “ ” “ ” Companies should collaborate with judicial mechanisms and provide for operational-level grievance mechanisms (OGMs) for fielding and addressing grievances from individuals impacted by their operations. Access to Remedy www.a4id.org

Non-judicial Grievance Mechanisms – Non-State In Practice Barrick Gold / Porgera 2012 - Olgeta Meri Remedy Framework to remedy egregious human rights violations committed by JVCo employees at a Papua New Guinea gold mine Extensive consultation – many good things, but serious shortcomings too Adidas “Third Party Complaint Process for Breaches to the Adidas Group Workplace Standards or Violations of International Human Rights Norms” Who? Directly affected parties How? Hotline or email SEA divison investigates and reports publicly Alter behaviour; remedy; monitor Bangladesh Accord Response to Rana Plaza 200+ companies operating 1,600+ factories Agreement between brands and trade unions Legally binding – but (at least initially) envisaged to have a five-year life-span Access to Remedy

Non-judicial Grievance Mechanisms – Non-State Issues Legitimacy Will claimants trust the process? Transparency Reasonable privacy/data protection concerns... but balance against fears of cover-ups Accessibility Who can access? Where to draw limits on (e.g.) claimants, advisors, other stakeholders Resource Implications Companies to provide / fund – but consider corresponding independence considerations Rights compatibility May achieve outcome – but pressure to accept less than what is owed? Dialogue-Based Process Potential for power imbalances Disparity in access to information / technical expertise Legal Waiver Company’s desire for certainty may clash with need for ongoing remedy, or appear insensitive Remedies What can a company give? E.g. financial compensation may appear callous Access to Remedy www.a4id.org

Looking Ahead: A Treaty on Business and Human Rights? Why a Treaty? Concerns about lack of access to remedy Treaty creates responsibility Easier path to accountability (and therefore... remedy?) However: many potential pitfalls Direct enforcement a departure from tradition Traditionally States held accountable, not private actors Lack of clear objective What would these “obligations” look like? Exclusion of purely national corporations Focus has been on transnational corporations – but is this justified? Exclusions of corporate stakeholders Negotiations have been at a State-level to date – but is wider input required if mechanism is to be legitimate? Access to Remedy www.a4id.org

What about us? Clear implications for States and companies – but what about their advisors? Litigation context – but are obligations the same? “Win at all costs?” – but what is the company “winning”? What does “zealous advocacy” look like in this context? Conduct in the context of litigation – consider classic disclosure approach versus other commitments the company may have made (re. transparency etc) Litigation as a tactic – appropriate in the human rights context? Other settings – designing OGMs; guiding early-stage responses to allegations; risk management Access to Remedy www.a4id.org