Human rights in business : removal of barriers to access to justice in the European Union / edited by Juan José Álvarez Rubio and Katerina Yiannibas.
2017
KJE1635 .H86 2017 (Map It)
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Details
Title
Human rights in business : removal of barriers to access to justice in the European Union / edited by Juan José Álvarez Rubio and Katerina Yiannibas.
Published
Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2017.
Call Number
KJE1635 .H86 2017
ISBN
9781138284180 (hbk)
1138284181 (hbk)
9781315269467 (ebk)
1138284181 (hbk)
9781315269467 (ebk)
Description
xii, 146 pages ; 25 cm
System Control No.
(OCoLC)957504173
Summary
The capacity to abuse, or in general affect the enjoyment of human, labour and environmental rights has risen with the increased social and economic power that multinational companies wield in the global economy. At the same time, it appears that it is difficult to regulate the activities of multinational companiesin such a way that they conform to international human, labour and environmental rights standards. This has partially to do with the organization of companies into groups of separate legal persons, incorporated in different states, as well as with the complexity of the corporate supply chain. Absent a business and human rights treaty, a more coherent legal and policy approach is required. Faced with the challenge of how to effectively access the right to remedy in the European Union for human rights abuses committed by EU companies in non-EU states, a diverse research consortium of academic and legal institutions was formed. The consortium, coordinated by the Globernance Institute for Democratic Governance, became the recipient of a 2013 Civil Justice Action Grant from the European Commission Directorate General for Justice. A mandate was thus issued for research, training and dissemination so as to bring visibility to the challenge posed and moreover, to provide some solutions for the removal of barriers to judicial and non-judicial remedy for victims of business related human rights abuses in non-EU states. The project commenced in September 2014 and over the course of two years the consortium conducted research along four specific lines in parallel with various training sessions across EU Member States. The research conducted focused primarily on judicial remedies, both jurisdictional barriers and applicable law barriers; non-judicial remedies, both to company based grievance. The results of this research endeavour make up the content of this report whose aim is to provide a scholarly foundation for policy proposals by identifying specific challenges relevant to access to justice in the European Union and to provide recommendations on how to remove legal and practical barriers so as to provide access to remedy for victims of business-related human rights abuses in non-EU states.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Notes on contributors
ix
Acknowledgments
xi
Introduction / Lucas Roorda
1
1.
Judicial remedies: The issue of jurisdiction / Nicola Jagers
7
1.1.
Overview
7
1.2.
Impact of international human rights law on jurisdiction in private international law
8
1.2.1.
Introduction
8
1.2.2.
Human rights in private litigation
9
1.2.3.
International human rights law and jurisdiction in private international law
11
1.3.
Jurisdiction in private international law in Europe and the US
16
1.3.1.
Introduction
16
1.3.2.
European approach: the Brussels I Regulation
17
1.3.2.1.
Scope of application
17
1.3.2.2.
Rules on jurisdiction
18
1.3.2.3.
Policy debate regarding the reform of the Brussels I Regulation
19
1.3.3.
US approach to jurisdiction
22
1.3.3.1.
Doctrines that may limit access to US courts in transnational cases
23
1.3.3.2.
Alien Tort Statute: presumption against extraterritoriality and personal jurisdiction
23
1.3.3.3.
Further doctrines that may limit access to US courts in transnational cases
25
1.3.3.4.
Litigating torts in state courts and/or under state law
26
1.3.4.
Comparing the EU and US approach to jurisdiction in private international law
27
1.4.
Residual jurisdiction in Europe
27
1.4.1.
Introduction
27
1.4.2.
Forum necessitatis
28
1.4.3.
Joining of defendants
31
1.4.4.
Pursuing civil remedies through criminal jurisdiction
34
1.5.
Conclusions and recommendations
36
2.
Judicial remedies: The issue of applicable law / L.F.H. (Liesbeth) Enneking
38
2.1.
Introduction
38
2.2.
Legal context
38
2.2.1.
Foreign direct liability and beyond
39
2.2.2.
Private international law and extraterritoriality
43
2.2.3.
Discussion
47
2.3.
Applicable law
48
2.3.1.
Rome II Regulation: general rule
49
2.3.2.
Rome II Regulation: special rule on environmental damage
52
2.3.3.
Rome II Regulation: relevant exceptions
55
2.3.3.1.
Overriding mandatory provisions
55
2.3.3.2.
Rules of safety and conduct
58
2.3.3.3.
Public policy
60
2.3.4.
Discussion
61
2.4.
Procedural rules and practical circumstances
65
2.4.1.
General observations
66
2.4.2.
financing of claims, collective redress and access to evidence
67
2.4.3.
Role of Article 6 ECHR
69
2.4.4.
Discussion
71
2.5.
Conclusions and recommendations
74
3.
Non-judicial remedies: Company-based grievance mechanisms and international arbitration / Katerina Yiannibas
78
3.1.
Introduction
78
3.1.1.
Context of research
78
3.1.2.
Research interest
81
3.1.3.
Definitions and methodology
83
3.2.
Case studies on company-based grievance mechanisms
86
3.2.1.
Siemens AG (case study by Julia Planitzer)
86
3.2.1.1.
General description of the company and its grievance mechanism
86
3.2.1.2.
Evaluation of the mechanism along the established criteria
92
3.2.1.3.
Concluding remarks
95
3.2.2.
Statoil (case study by Pablo Paisan Ruiz)
96
3.2.2.1.
General description of the company and its grievance mechanism
96
3.2.2.2.
Evaluation of the mechanism along the established criteria
102
3.2.2.3.
Concluding remarks
103
3.3.
Case study on the potential of the arbitration mechanism: Permanent Court of Arbitration (case study by Katerina Yiannibas)
105
3.3.1.
General description and functioning of the Permanent Court of Arbitration
105
3.3.2.
Evaluation of the mechanism along the established criteria
108
3.3.2.1.
Legitimacy
108
3.3.2.2.
Accessibility and predictability
110
3.3.2.3.
Transparency and a source of continuous learning
111
3.3.2.4.
Rights-compatibility
112
3.3.3.
Concluding remarks
113
3.4.
Conclusions and recommendations
113
Annex: List of interview partners
118
4.
Corporate responsibility to respect human rights vis-a-vis legal duty of care / Paige Morrow
119
4.1.
Introduction
119
4.2.
Legal context
121
4.2.1.
Implementing the UN Guiding Principles
121
4.2.2.
Following the general legal trend
122
4.3.
Scenarios
125
4.3.1.
Scenario I: access to evidence on control
125
4.3.1.1.
Background
125
4.3.1.2.
Description of Scenario I
127
4.3.1.3.
Feasibility
127
4.3.1.4.
Effectiveness
128
4.3.2.
Scenario II: rebuttable presumption of control
128
4.3.2.1.
Background
128
4.3.2.2.
Description of Scenario II
128
4.3.2.3.
Feasibility
129
4.3.2.4.
Effectiveness
130
4.3.3.
Scenario III: statutory duty for a company to conduct human rights due diligence
130
4.3.3.1.
Background
130
4.3.3.2.
Description of Scenario III
130
4.3.3.3.
Feasibility
137
Conclusion / Katerina Yiannibas
139
Index
144