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Article

29 Oct 2020

Author:
European Coalition for Corporate Justice

Day 3 Summary: As participation drops, some states attempt to water down key provisions

"Day 3: As participation drops, some states attempt to water down key provisions", 29 October 2020.

...The discussions covered everything from reparations to victims to the statute of limitations with some states, namely China, Russia and Brazil, regularly attempting to weaken key provisions of the draft text...

Regarding the provision on liability for harm caused or contributed to by controlled entities (article 8.7), states like Egypt welcomed the draft text, while others wanted to see the term ‘control’ further clarified. Mexico recommended deleting the reference to factual control in favour of legal control. China firmly rejected the paragraph altogether on the grounds that it violates the fundamental principle of the independence of corporate personality, meaning an enterprise can only bear legal responsibility for its own behaviour...

A significant chunk of the discussion revolved around criminal or functionally equivalent liability of legal persons for human rights abuses (article 8.4 and 8.9). Brazil and Russia fiercely opposed the idea of holding legal persons criminally responsible under the treaty...Regarding the notion of functionally equivalent liability, Mexico and Egypt suggested replacing the term with administrative liability...

razil, Russia and China sided with the positions of the International Organisation of Employers and the United States Council for International Businesses, interpreting the explicit prohibition of forum non conveniens as an invitation for ‘forum shopping’ and the broad approach as leading towards a de facto universal jurisdiction, both of which would, according to the three delegations, result in jurisdictional uncertainties for business...Much support for the article’s broad approach was voiced by the Philippines, Namibia, Ecuador, Chile and Egypt and the vast majority of civil society, given that the current formulation seeks to reduce obstacles for access to justice and remedy for victims who often face huge barriers in getting their case heard by a relevant court...

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