By Michael Quayle, Thomas Voland and Emily Holland
Freshfields’ coverage of the UN Forum on Business and Human Rights concludes with themes emerging from the third and final day of the conference, and overall reflections on the event as a whole.
Overview: Significance of Developing Private Sector and Government Participation
Over the course of three days, diverse panels offered a wide range of views on the key theme of the 2017 Forum: remediation. Discussions centered on methods to establish effective access to remedy, identify existing gaps, and focus attention on critical areas.
Private sector participants exhibited a willingness to engage not simply on issues and initiatives at a high-level but on real-life issues encountered, companies’ responses, and lessons learned. Practical insights produced rich debate on what effective risk management and response means, and what the barriers to the success of innovation are.
Crucially, the tenor of the discussions also indicated that corporates are increasingly disposed towards greater transparency in describing their own human rights issues, where they may have been more reticent in the past. This reflects a broader trend towards more expansive corporate human rights disclosures, which has been inspired, at least in part, by increasing legal reporting requirements. However, many companies reported that these disclosures are still primarily observed by the “triple-A group” of academics, analysts, and advocacy organizations.
Another notable development in this year’s Forum was the increased presence of, and participation by, government ministers and other representatives from Australia and North and South America—and, in particular, African, Asian, and European countries. The proliferation of state representatives across multiple panels was clearly reflective of the increased attention that policymakers and legislators are paying to this area. Discussion concerned existing and developing legislative and enforcement measures to address forced and child labor issues that taint the world’s supply chains, including the draft Dutch child labor bill, Australian modern slavery proposal, and a proposed amendment to compel Swiss companies to conduct due diligence on their subsidiaries.
Attention also focused on new and anticipated National Action Plans (NAPs) on Business and Human Rights that help countries to satisfy their responsibility to protect against human rights abuses within their territories and/or jurisdictions by third parties, including businesses. This fall, the Czech Republic and Ireland became the latest states to produce NAPs, in October and November, respectively. Now Thailand is taking steps to develop and launch a plan.
Day Three Recap
We now turn to particularly interesting perspectives emerging from Day 3 of the Forum:
Alternative dispute resolution and human rights Several panels explored methods being used to resolve human rights issues without resort to traditional litigation. Chairman of Freshfields’ Global Business and Human Rights practice, Paul Bowden, and senior associate Deba Das were joined by representatives from Anti-Slavery International, Sancroft International, Doughty Street Chambers, and DLA Piper in a role-play mediation that yielded insights into the opportunities and difficulties presented by non-judicial resolution procedures, options for financial and non-financial remedies, and tensions between the potentially conflicting interests of the participants. Later, Michael Quayle and Emily Holland discussed the firm’s Global Business and Human Rights blog and the importance for corporates of tracking hard-edged legal developments in the human rights space, and topics we believe are most relevant to our readership, all in some way related to remedy.
OECD National Contact Point procedures National Contact Points (NCPs) continue to furnish a popular alternative path for claimants to raise human rights-related grievances with multinationals. Some companies that have become the subject of an NCP complaint process described positive mediation experiences, which enabled those involved to move swiftly towards consensual resolution. However, panelists noted differences in NCP procedures across different jurisdictions, which indicate that such results are more achievable in some countries than others. While functional equivalence has not yet been achieved, the outcome of a case before the Dutch NCP highlighted possible success factors, such as: engaging key company individuals, identifying all affected rights-holders, establishing a clear road-map for discussion, appointing an independent review panel and mediator, and building trust by ensuring confidentiality while promoting full transparency on expectations by parties to the NCP process.
Extractives sector grievance mechanisms Representatives from multinational oil and mining companies offered detailed, ground-level insights into processes implemented to handle community and environmental issues generated by business activities. Participants extolled the virtues of integrating grievance mechanisms into existing systems to improve responses. There was also general consensus on the importance of the following factors to effective remediation: involving affected communities early in the mechanism design process, engaging in ongoing dialogue with both affected communities and governments, enlisting appropriate third parties, pursuing different, culturally appropriate, issue-specific, and accessible options, and data collection and reporting to inform and improve existing and future responses.
Financial sector and modern slavery risk Approaches to human rights risk response by financial institutions continue to evolve, as does understanding with respect to their role in relation to human rights impacts. Representatives from international financial institutions described emerging measures to address risk arising from modern slavery, including operationalizing existing anti-money laundering tools to identify the retail banking transactions of perpetrators and/or victims of modern slavery, as well as collaborating with law enforcement, NGOs, and other entities that possess relevant expertise. There are also calls for banks to play a role in remediation; for example, by supporting efforts to improve financial literacy amongst victims of trafficking.
Investment-related human rights violations Discussion on the implications of international investment agreements, and investor-state dispute settlement, on realizing access to effective remedy in the context of investment-related human rights violations, raised a number of questions. Among them, whether the relationship between human rights and investment treaties – most decades-old and without explicit reference to ESG factors – should be re-explored, as well as existing arbitration rules. Discussion also addressed to what extent states may raise human rights issues as a defense to bilateral investment treaty claims that they have breached obligations under investment treaties, or conversely in counter-claims to enforce human rights compliance by investors.
Thank you for following our coverage of the 2017 UN Forum on Business and Human Rights. For more on the conference, please visit the official UN Forum site.