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28 Oct 2021

European Coalition for Corporate Justice (ECCJ)

Day 4 of talks on UN binding treaty: Sticks are needed, not carrots

… [C]ivil society delivered their statements on article 6, which outlines the state duty to regulate due diligence obligations for companies…and suggested the following changes:

  • to delete references to mitigation of abuses…
  • to make clear that business enterprises should take into account all potential barriers to effective engagement…
  • to address the role of the State as an economic actor…

Regarding free, prior and informed consent, open questions remain on the meaning of the term ‘meaningful’ in the context of consultations …

The article on remedy seemed to split the room once again. Palestine proposed adding a new article 7.1 bis concerning the reparation process to include consultation with those affected and the facilitation of disclosure of information – a suggestion widely supported by civil society.

… [S]kepticism came from Russia and Brazil on the issue of reversing the burden of proof. They received backing from industry groups…

… [T]he US delegate [continued to argue] that this article is too prescriptive to accommodate the diversity of national legal systems and suggested a so-called “alternative approach”.

In response, a group of civil society organisations, including ECCJ, intervened again to make their position clear and provide the following proposals:

  • to strengthen provisions on access to information;
  • to remove references on “allowing judges” and “where consistent with international law and its domestic constitutional law”;
  • to integrate the principle of dynamic burden of proof, explaining that it should not be up to the judges’ discretion, but rather provided by legislation.

Some business representatives, including from the International Organization of Employers, argued that rules on disclosure of information ignore privacy rules and that forum non conveniens should be respected.

Strong divergences arose with regard to article 8.4 on reparations for victims of business-related human rights abuses…

Brazil similarly proposed the deletion of article 8.5, which aims to require businesses to maintain financial security to cover potential claims of compensation [arguing that the] measure would be “disproportionate”.

On the issue of civil liability, Mexico suggested separating the provision into the three key types of liability: direct liability, liability for omission to prevent, and liability for harms committed by third parties. This received only lukewarm support.

Some delegates expressed support for article 8.10 on criminal liability…

Brazil proposed a dangerous Article 8.bis, which would oblige victims to “exhaust all legal instances of domestic law where the human rights abuse occurred” before bringing a claim in a different country.

Just as the session was wrapping up, the US raised concerns about article 10 on statute of limitations, given the lack of definition of ‘most serious crimes’.


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