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Executive summary - Removing Barriers to Justice: how a treaty on business and human rights could improve access to remedy for victims

Author: Daniel Blackburn, International Centre for Trade Union Rights (ICTUR), Published on: 31 August 2017

…The report focuses specific attention on policy and legal developments in the European Union (EU). It identifies whether and in what way a UN treaty on business and human rights could complement and improve policy development and action at the national level to address barriers to remedy, as well as setting the framework for harmonising key elements of law…

The case studies turn the spotlight on serious human rights impacts that are the result of transnational business ventures…

Analysis of the cases reveals:

  • Jurisdictional problems specific to transnational litigation, including attempts to bounce cases from  jurisdiction  to  jurisdiction,  and  the  complexity  of  attempting  to  interpret  and  apply  foreign law.
  • Legal barriers – specifically the corporate veil – shielding the parent company from responsibility for the debts and liabilities of its subsidiaries.
  • Similarly, barriers to criminal liability are shown to exist in many cases, with corporations either not indictable, or a lack of effective rules for determining intent.
  • The need for ‘due diligence’ to be placed on a solid legal footing to ensure that human rights are appropriately integrated into corporate decision-making, and to establish a duty of care rather than reliance on voluntarism.
  • Risks for human rights defenders – individuals and communities (or their representatives) who try  to  bring  legal  cases  against  multinational  companies  may  face  considerable challenges themselves as a result.
  • A set of problems grouped here as ‘access to courts’ are a crucial factor: the unequal position of  rural  farmers  and  industrial  workers  against  giant  companies  is  exacerbated  by  rules  on access to information, representation, the burden of proof and the complexity of transnational corporate structures and actions.
  • Problems  of  enforcement:  criminal  law  requiring  adaptation  and  regulatory  agencies  and  prosecutors requiring training and renewed mandates...

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