Anne Peters (Max Planck Institute for Comparative Public Law and International Law), Sabine Gless (University of Basel), Chris Thomale (Ruprecht-Karls Universität Heidelberg) and Marc-Philippe Weller (Heidelberg University) have posted Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law on SSRN.
The paper’s starting point is the United Nations Human Rights Council working group’s revised draft of a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises of July 2019. The paper examines the draft treaty’s potential to activate and operationalize public law, private law, and criminal law for enforcing human rights. It conceptualizes a complementary approach of these three branches of law in which private and criminal legal enforcement mechanisms stand in the foreground. It argues for linking civil (tort) and criminal liability for harm caused by hands-off corporate policies, complemented by the obligation to interpret managerial duties in conformity with the human rights standards of public international law. The combination of public, private, and criminal law allows effective enforcement of human rights vis-à-vis global corporations.
The paper is part of the Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper Series.
Very interesting article, and very valuable, especially in its descriptive dimension. However, the point on the “applicable law to human-rights violations” (pp. 26-27) is very disputable: the interpretation that the authors make of Arts. 4.1 and 4.3 of Rome II which transforms both provisions in a human-rights “mirror” of Art. 7 (environmental torts) is questionable. If Arts. 4.1 and 4.3 (which are general provisions) could be used in the way the authors contend, then why would Article 7 exist?
Dear Colleague,
We argue that victims of human rights violations should be free to choose the tort law applicable to their case between either the law of the country in which the damage occurred, Art. 4 (1) Rome II Regulation, or the law of the country in which the event giving rise to the damage occurred (place of the harmful act or omission). This right to choose can be justified relying on Art. 4 (3) Rome II Regulation.
This view pays regard to the fact that the tortious event may not only occur in the foreign State of the subsidiary or subcontractor. It may – in addition – occur in the State of the parent company. The tort of the parent company is generally constituted by an omission, if the parent company does not take the necessary preventive organizational measures required by its tortious duty of care that is extended to the activities of its subsidiaries and subcontrac- tors. If the event (omission) giving rise to the damage were the connecting factor, the tort law of the domestic (parent) company would be applicable.
The underlying argument for the giving the victim the choice is the following: The current connecting factors in the Rome II-Regulation were established to protect the victim. However, it may, in some seldom cases like in supply chains with human rights violations, turn out to be more favorable for the victim to apply the law of the country of the tortious event. In such situations the escape clause in Art. 4 (3) Rome II Regulation should be activated in favor of the victim. Otherwise, the rationale of Art. 4 Rome II-Regulation (protection of the victim) would be led ad absurdum.
A further argument results from preventing legal arbitrage by construing such supply chains: Supply chains contain more than one legal relationship. The ordre public as classical limit to the application of substantive foreign law (Art. 26 Rome II) works only within the first legal relationship which was concluded directly with the domestic company. However, the ordre public turns out to be ineffective with regard to legal relationships “at the end” of supply chains; there, it lacks the required domestic nexus.
By establishing such supply chains across several legal entities in different jurisdictions, the domestic parent company uses the party autonomy als well as the freedom of contract to circumvent the classical counterbalancing-instruments provided for in the Rome II-Regulation, i.e. the ordre public. Law shopping as such is, of course, not illegal (cf. ECJ – Centros). However, law shopping as well as forum shopping is subject to limits (cf. Art. 3 (3) and (4) Rome I-Regulation), especially, when it systematically leads to a race to the bottom and undermines basic human rights standards (see in more detail WELLER/NASSE, Menschenrechtsarbitrage als Gefahrenquelle – Systemkohärenz einer Verkehrspflicht zur Menschenrechtssicherung in Lieferketten?, ZGR 2020 – forthcoming). Therefore we need an instrument to neutralize the legal arbitrage in chains of legal relations: The victim must be allowed to choose as a connecting factor either the tortious event (omission) or the damage as materialised.
Marc-Philippe WELLER, Heidelberg University