A responsabilidade das empresas no Direito Penal Internacional e a jurisdição do Tribunal Penal Internacional sobre as pessoas coletivas – uma nova velha história
This article in Portuguese was written by Athina Sachoulidou and published in Vida Judiciária which is available here
Description: This article discusses the involvement of corporations in human rights violations amounting to international crimes through the lens of International Criminal Law (ICL). It briefly examines how corporate liability for criminal conduct was dealt with in the Nuremberg times and, subsequently, shifts the focus onto the recent history of ICL and the ratione personae jurisdiction of the International Criminal Court (ICC). In this context, it explains why legal persons fall outside the scope of the ICC jurisdiction and what kind of amendments would be necessary to overturn the status quo as well as the difficulties associated with them. Against this backdrop, it concludes by stressing the need for setting alternative priorities to facilitate access to justice for victims. In the case of the ICC, this would mean focusing on the individual wrongdoers and holding them accountable by employing already existing schemes of liability, like that of superior responsibility. In addition, it is necessary to further national schemes of corporate liability ex crimine to ensure that international crimes fall into their scope (where this is not already the case).
A.Sachoulidou. (2022). A responsabilidade das empresas no Direito Penal Internacional e a jurisdição do Tribunal Penal Internacional sobre as pessoas coletivas – uma nova velha história, Vida Judiciária, 23-25
From ‘Due Diligence’ to ‘Adequate Redress’. Towards Compulsory Human Rights and Environmental Insurance for Companies?
This article was written by Claire Bright and Stephen J. Turner and published in the International Community Law Review which is available on open access here.
Description: This article considers the case for compulsory corporate human rights and environmental insurance. It approaches it within the context of the need for more effective, efficient and just systems of redress for the victims of human rights and environmental harm that is caused by companies where they have operations or supply chains in single or multiple jurisdictions. Developments within the field of corporate responsibility for human rights and environmental issues have led to a variety of different initiatives that range from the UN ‘protect, respect, and remedy’ framework and the associated human rights due diligence (HRDD) framework, to specific legal developments in certain jurisdictions and other schemes developed by international organisations, as well as by civil-society and businesses themselves. From the perspective of corporate law, these changes have taken place within a legal framework that has certain features that have hindered the availability of remedies for victims of associated human rights and environmental harm. This article problematises the issue of redress for corporate human rights violations and environmental degradation within the context of international developments in this field. It considers whether there is a prima facie case for the establishment of a comprehensive compulsory human rights and environmental insurance regime for companies that would require them to operate to a high standard of care in their operations, and which would ultimately provide a more straightforward system of redress for victims.
Turner, S. J., & Bright, C. (2022). From ‘Due Diligence’ to ‘Adequate Redress’. Towards Compulsory Human Rights and Environmental Insurance for Companies?, International Community Law Review, 24(1-2), 145-165
Una mirada hacia los desarrollos normativos y jurisprudenciales en materia de debida diligencia empresarial y cambio climático
The book chapter was written by Claire Bright, Irene Pietropaoli and Laura Íñigo Álvarez.
Description: This book chapter examines the relevance of the concept of due diligence in the fight against climate change, the normative developments in this area, as well as the caselaw developments, considering both judicial and non-judicial procedures. The aim of this work is to provide a better understanding of the growing expectations regarding due diligence and climate change applicable to companies.
C. Bright, I. Pietropaoli & L. Íñigo Álvarez, “Una mirada hacia los desarrollos normativos y jurisprudenciales en materia de debida diligencia empresarial y cambio climático” in F. J. Zamora Cabot, L. Sales Pallarés & M. C. Marullo, La lucha en clave judicial frente al cambio climático, Aranzadi, 2022, pp. 71-92.
Risk-Based Due Diligence, Climate Change, Human Rights and the Just Transition
This article was written by Claire Bright and Karin Buhmann and published in the journal Sustainability as part of the special issue on Business, Human Rights and the Environment edited by Olga Martin-Ortega,Valerie Nelso, Renginee G. Pillay and Fatimazahra Dehbi which is available on open access here.
Description: Climate change has been described as one of the greatest threats to people and the planet. Its impacts affect virtually the entire spectrum of internationally recognised human rights as well as the environment in and of itself. In relation to human rights, there is a growing consensus that companies should exercise human rights due diligence in order to identify and prevent their actual and potential adverse impacts. However, the relevance and implications of the concept of due diligence have not yet fully been analysed in relation to climate change. In this paper, we explore the concept of risk-based due diligence, which builds on the concept of human rights due diligence but extends it to other areas such as the environment. Through a review of recent regulatory developments as well as case-law and other grievances, we analyse the three facets of risk-based due diligence for climate change—prevention, mitigation and remediation. We consider both the short term as well as the longer-term human rights and environmental implications of companies’ climate-related impacts, as well as those resulting from the company’s contributions to the green transition. We argue that risk-based due diligence offers an under-explored but important dual function: providing the operational means through which companies can identify and address the climate-related human rights and environmental impacts with which they may be involved, whilst also taking into consideration the human rights implications of their climate mitigation strategies and contributions to the just transition.
Bright, C.; Buhmann, K. Risk-Based Due Diligence, Climate Change, Human Rights and the Just Transition. Sustainability 2021, 13, 10454. https://doi.org/10.3390/su131810454
Study on Trade Policy and Child Labour
This study was prepared by Chis Bayer, Claire Bright, Irene Pietropaoli, Eliana Gonzalez Torres, Justine Vinet and Derril D. Watson, for Saskia Bricmont and the Greens/EFA Group in the European Parliament and published in June 10 202. It is entitled ‘ ’50 Billions Euros: Europe’s Child Labor Footprint in 2019’ and is available here
C. Bayer, C. Bright, I. Pietropaoli, E. Gonzalez Torres, J. Vinet, D. Waston, ’50 Billions Euros: Europe’s Child Labor Footprint in 2019′, Report prepared for the Greens/EFA Group in the European Parliament, June 10 2021, available at: https://28696c7d-66ef-4bd0-86e3-c319e9b535e4.filesusr.com/ugd/f0f801_6a5192d8587c4c37b45ef5b37dc5dffb.pdf
Legal brief on Human Rights and Environmental Due Diligence
Description: This legal brief on Human Rights and Environmental Due Diligence was prepared by Claire Bright, Laura Íñigo Álvarez, Ana Duarte, Rafaela Oliveira, Sara Rentroia Pacheco and Benedita Sequeira on behalf of the NOVA BHRE. This project was prepared for the Instituto Marquês de Valle Flôr (IMVF) as part of the Pan-European campaign OurFood.OurFuture, implemented in Portugal by IMVF. The legal brief is available in English, Portuguese and in Spanish.
NOVA BHRE, Human Rights Due Diligence Legal Brief, Our Food.Our Future Project, March 2021.
Private international law issues in the Second Draft of the legally binding instrument on business and human rights
The article was written by Claire Bright, Maria Chiara Marullo and Francisco Javier Zamora Cabot and published as part of the Nederlands Internationaal Privaatrecht
Description: Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in internationaal human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.
C. Bright, M. Marullo and F. Cabot ‘Private international law issues in the Second Draft of the legally binding instrument on business and human rights’, in the Nederlands International Privaatrecht [Dutch Journal of Private International Law], 39/1 2021
Empresas, Derechos Humanos y la COVID-19: El deber del estado de proteger la salud laboral y el empleo
The article was written by Claire Bright, Nicolas Bueno and Irene Pietropaoli in the Revista Española de Derecho Internacional (Spanish Review of International Law).
Description: This article analyses the State duty to protect workers’ health and employment during the COVID-19 pandemic from a business and human rights perspective.
C. Bright, N. Bueno and I. Pietropaoli, ‘Empresas, Derechos Humanos y la COVID-19: El deber del estado de proteger la salud laboral y el empleo’, Revista Española de Derecho Internacional, Sección FOROS, Vol. 73/1, 2021, pp. 319-328.
Mapping human rights due diligence regulations and evaluating their contribution in upholding labour standards in global supply chainss
The article was written by Claire Bright, and published as part of an edited volume on ‘Decent work in globalised economy: Lessons from public and private initiatives
Description: The purpose of this paper is to facilitate discussions around regulatory measures seeking to encourage or require companies to exercise human rights due diligence in relation to labour issues in the global supply chain. In this perspective, it proposes a mapping of key existing legislation and legislative initiatives at the national level. Even though the main focus of the paper is on Europe, other relevant legislation or initiatives of particular comparative value will be analysed. The ambition of the paper is not to be exhaustive but rather to map key legislation and legislative initiatives in order to gain a better understanding of the current legal landscape. Read the french version here and the English version is available here.
C. Bright, ‘Mapping human rights due diligence regulations and evaluating their contribution in upholding labour standards in global supply chains’, in G. Delautre, E. Echeverría Manrique and C. Fenwick, ‘Decent work in globalised economy: Lessons from public and private initiatives’, ILO 2021
Holding Companies to Account for Human Rights Abuses in Third Countries: Why is it so difficult?
This book chapter was written by Claire Bright and Axel Marx, and published in Ana Luiza da Gama e Souza, Lara Denise Goés da Costa and Leticia Helena Medeiros Velosos (eds.) Direitos Humanos, Paz, Sustentabilidade e Empresas Globais, REDHIPAS, 2021.
Description: The paper analyses the various barriers to accessing effective remedy faced by claimants in concrete cases involving business-related human rights harms.
C. Bright and A. Marx, ‘Holding Companies to Account for Human Rights Abuses in Third Countries: Why is it so difficult?’, in Ana Luiza da Gama e Souza, Lara Denise Goés da Costa and Leticia Helena Medeiros Velosos (eds.) Diretos Humanos, Paz, Sustentabilidade e Empresas Globais, REDHIPAS, 2021.
Panorama du cadre normatif relatif au devoir de vigilance en matière de droits de l’homme dans les chaînes d’approvisionnement mondiales
This overview was prepared by Claire Bright and published in the 2020 study by Entreprises pour les droits de l’Homme (Edh) entitled ‘Etude: Application de la Loi sur le devoir de vigilance – Plans de vigilance parus en 2019-2020’, December 2020
Description: The contribution gives a brief overview of the legal landscape in relation to human rights due diligence in global value chains in Europe. It is accessible here.
C. Bright, ‘Panorama du cadre normatif relatif au devoir de vigilance en matière de droits de l’homme dans les chaînes d’approvisionnement mondiales’, in Entreprises pour les droits de l’Homme (Edh) ‘Etude: Application de la Loi sur le devoir de vigilance – Plans de vigilance parus en 2019-2020’, December 2020, at 11-13.
This article was co-authored by Lise Smit and Claire Bright and published in the CEDIS Working Paper series in December 2020.
Introduction: Recent developments across Europe on national as well as European level propose the introduction of corporate liability for mandatory human rights and environmental due diligence (“mHREDD”) regulations. As part of these discussions, the concept of a “safe harbour” against liability has surfaced in various contexts. This article aims to clarify how the concept of “safe harbour” may be helpfully understood within the context of applying mHREDD as a legal standard of care.
L. Smit and C. Bright, ‘The concept of “safe harbour” and mandatory human rights due diligence’, CEDIS Working Papers, December 2020: 1-38.
This article was co-authored by Claire Bright, Axel Marx, Nina Pineau and Jan Wouters and published in the journal Business and Politics in October 2020
Abstract: The corporate responsibility to respect human rights was formally introduced in 2011 with the unanimous endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) by the UN Human Rights Council. It is grounded in social expectations and forms part of the companies’ “social license to operate.” This paper argues that this responsibility is progressively turning into a legal duty for lead companies to respect human rights in those types of value chains which are characterised by a high level of control by a lead company over its business partners. Our argument rests on two recent legal developments. Firstly, the article analyses the judicialization of the corporate responsibility to respect in the case law on parent company liability in various jurisdictions, which, we argue, is highly likely to have some implications in relation to certain types of value chains so as to trigger the liability of lead companies for the human rights harms arising out of the activities of entities over which they exercise sufficient control. Secondly, the article delves into the legislative developments which increasingly require lead companies to exercise due diligence so as to prevent and address adverse human rights impacts in their own activities and global value chains.
C. Bright, A. Marx, N. Pineau and J. Wouters, “Towards a corporate duty for lead companies to respect human rights in their global value chains?”, 22(4) Business and Politics (2020), 667-697.
This article was co-authored by Nicolas Bueno and Claire Bright and published in the International & Comparative Law Quartery in October 2020.
Abstract: Since the adoption of the UN Guiding Principles on Business and Human Rights, the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.
N. Bueno and C. Bright (2020), Implementing Human Rights Due Diligence Through Corporate Civil Liability, 69(4) International & Comparative Law Quarterly (2020), 789-818.
Journal Article: Business Views on Mandatory Human Rights Due Diligence Regulation: a Comparative Analysis of Two Recent Studies.
This article was co-written by Lise Smit, Claire Bright, Irene Pietropaoli, Peter Hood, and Julianne Hughes and published in the Business and Human Rights Journal in July 2020.
L. Smit, C. Bright, I. Pietropaoli, P. Hood and J. Hughes Jennett. (2020). Business and Human Rights Journal, 5(2), 261-269.
This report for the 11.11.11 and the Working Group on Corporate Accountability was co-written by Claire Bright, Diana Lica, Axel Marx, and Geert Van Calster and published in June 2011.
Abstract: This report provides a series of options to pursue mandatory human rights due diligence legislation in Belgium, based on an analysis of similar initiatives in surrounding countries (chapter 1) and an analysis of possible ‘anchors’ in current Belgian law (chapter 2). Both chapters provide a series of options which can be considered and be combined in different ways. In developing a strategy on a possible Belgian approach towards mandatory human rights due diligence these options can be combined into one specific proposal for a law on mandatory due diligence or specific options can be pursued separately.
The first chapter examines the state of play of mandatory human rights due diligence legislation in Europe with a specific focus on the UK Modern Slavery Act, the Dutch Child Labour Due Diligence Act, the French Duty of Vigilance Law, the Swiss Responsible Business Initiative and its parliamentary counter-proposals and the German Due Diligence in Supply Chains Draft Law. It provides a comparative overview of the different laws, assess their strengths and weaknesses and draw implications for a possible Belgian law using the ECCJ framework which has identified 10 features for ‘effective, comprehensive’ mandatory Human Rights Due Diligence Legislation. It also offers further considerations on a possible law in the Belgian context focusing on economic structure, position of stakeholders and division of competences in Belgium; and on liability.
The second chapter further explores some possible entry points already existing in Belgian law and focuses on the current state of play in Belgium with a focus on initiatives in relation to “due diligence” Belgian National Contact Point and 2017 Belgian National Action Plan to implement the UN Guiding Principles on Business and Human Rights, corporations law, general contract law, health, safety and regulatory law, employment law and private international law and public international law.
C. Bright, D. Lica, A. Marx, and G. Van Calster, ‘Options for Mandatory Human Rights Due Diligence in Belgium’, Study for the 11.11.11 and the Working Group on Corporate Accountability, June 2020, available at: https://ghum.kuleuven.be/ggs/publications/research_reports/options-for-mandatory-human-rights-due-diligence.pdf
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Book Chapter: Hardening Soft Law: the Implementation of the Human Rights Due Diligence Requirements in Domestic Legislations.
This book chapter was co-authored by Chiara Macchi and Claire Bright.
Although the UN Guiding Principles on Business and Human Rights (UNGPs) are a soft law instrument which does not create any legally binding obligations, they nevertheless constitute the first authoritative global standard on business and human rights and have spurred a number of domestic-level legislative developments that seek to implement the UNGPs and translate the human rights due diligence (HRDD) requirements into hard law, through a process of progressive ‘hardening’ of the UNGPs.
Indeed, since the adoption of the UNGPs in 2011, a wide spectrum of domestic-level measures on HRDD have bloomed in numerous jurisdictions throughout the world. Reporting regulations such as the UK and Australian Modern Slavery Acts focus on only one part, albeit an essential one, of the HRDD process which is the communication element. Other domestic-level measures, such as the Dutch Child Labour Due Diligence Law, go beyond mere mandatory reporting by requiring companies to actually undertake HRDD, whilst remaining issue-specific. Some go still further, such as the French law on the duty of vigilance, the Swiss Initiative on Responsible Business, and the German draft law on due diligence in supply chains, by aiming to provide an overarching mandatory due diligence framework, with penalties and a civil liability regime attached to it. This Chapter provides an in-depth analysis of these legal developments.
C. Macchi and C. Bright, ‘Hardening Soft Law: the Implementation of the Human Rights Due Diligence Requirements in Domestic Legislations’, in M. Buscemi, N. Lazzerini, L. Magi and D. Russo (eds.), Legal Sources in Business and Human Rights: Evolving Dynamics in International and European Law (Brill, 2020), 218-247.
This study was co-authored by Lise Smit, Claire Bright, Robert McCorquodale, Matthias Bauer, Hanna Deringer, Daniela Baeza-Breinbauer, Francisca Torres-Cortés, Frank Alleweldt, Senda Kara and Camille Salinier, and Héctor Tejero Tobed.
Abstract: This study for the European Commission focuses on due diligence requirements to identify, prevent, mitigate and account for abuses of human rights, including the rights of the child and fundamental freedoms, serious bodily injury or health risks, environmental damage, including with respect to climate. It was conducted by the British Institute of International and Comparative Law (lead), Civic Consulting and LSE Consulting. Through desk research, country analyses, interviews and surveys it identifies Market Practices (Task 1) and perceptions regarding regulatory options. The Regulatory Review (Task 2), including twelve Country Reports, shows that UN Guiding Principles on Business and Human Rights’ standard of due diligence is increasingly being introduced into legal standards or proposed in Member States. The Problem Analysis, policy background and intervention logic concludes with the definition of four options for regulatory proposals (Task 3): No change (Option 1), new voluntary guidelines (Option 2), new reporting requirements (Option 3) and mandatory due diligence as a legal standard of care (Option 4). Option 4 includes sub-options limited to sector and company size, and enforcement through state-based oversight or judicial / non-judicial remedies. The assessment of impacts of regulatory options (Task 4) considers economic impacts, impacts on public authorities, social, human rights and environmental impacts.
L. Smit, C. Bright, R. McCorquodale, M. Bauer, H. Deringer, D. Baeza-Breinbauer, F. Torres-Cortés, F. Alleweldt, S. Kara, C. Salinier and H. Tejero Tobed, ‘Study on due diligence requirements through the supply chain: Final Report’, Study for the European Commission, February 2020, (available at: https://op.europa.eu/en/publication-detail/-/publication/8ba0a8fd-4c83-11ea-b8b7-01aa75ed71a1/language-en
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Study for the European Parliament on Access to Legal Remedies for Victims of Corporate Human Rights Abuses in Third Countries.
This study was co-authored by Axel Marx, Claire Bright and Jan Wouters and published in February 2019.
European-based multinational corporations can cause or be complicit in human rights abuses in third countries. Victims of corporate human rights abuses frequently face many hurdles when attempting to hold corporations to account in their own country. Against this backdrop, judicial mechanisms have increasingly been relied on to bring legal proceedings in the home States of the corporations. This study attempts to map out all relevant cases (35 in total) filed in Member States of the European Union on the basis of alleged corporate human rights abuses in third countries. It also provides an in-depth analysis of 12 cases and identifies various obstacles (legal, procedural and practical) faced by claimants in accessing legal remedy. On the basis of these findings, it makes a number of recommendations to the EU institutions in order to improve access to legal remedies in the EU for victims of human rights abuses by European based companies in third countries.
A. Marx, C. Bright, and Jan Wouters, ‘Access to legal remedy for victims of corporate human rights abuses in third countries’, Study requested by the European Parliament’s Sub-Committee on Human Rights, availableat: http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603475/EXPO_STU(2019)603475_EN.pdf