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

2. 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

3. 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

4. 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

5. 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

6. 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 [ 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. Non-judicial Grievance Mechanisms – Non-State In Practice
Barrick Gold / Porgera
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
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

14. 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

15. 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

16. 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