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Commentary on scope, prevention & legal liability provisions of Revised Draft of proposed binding treaty on business & human rights

Author: Peter Hood & Julianne Hughes-Jennett, Hogan Lovells, on JD Supra, Published on: 29 July 2019

"UN Working Group publishes revised draft of business and human rights treaty: commentary on scope, prevention and legal liability", 26 Jul 2019

On 16 July, a UN working group published a revised draft of its business and human rights treaty (following the “Zero” Draft published in July last year). Our post looks at some of the key developments, with a particular focus on its scope and the provisions on prevention and legal liability. We conclude by asking what happens next and providing some practical guidance to business...

The Revised Draft adopts a different, albeit ambiguous, formulation. Article 3 provides that it shall apply to “all business activities, including particularly but not limited to those of a transnational character”, suggesting that the scope of the treaty has been expanded to cover all business activity. However, “business activities” is defined in Article 1 as “any economic activity of transnational corporations and other business enterprises, including but not limited to productive or commercial activity […]”, suggesting that purely domestic business activity remains out of scope...

Article 6 of the Revised Draft introduces a new provision which would require States to establish liability for failing to prevent another person with which it has a contractual relationship from causing harm to third parties, irrespective of where such harm takes place. Such liability would only arise where there is either control over the contract counter-party or where the human rights violation or abuse is reasonably foreseeable...

Like the Zero Draft, the Revised Draft requires that States take certain steps to establish criminal liability for involvement in human rights abuses which amount to criminal offences...

 

 

Read the full post here