"Open consultations on the implementation of HRC Resolution 26/9 - Elaboration of an international legally binding instrument on TNCs, OBEs and human rights - Guiding questions for thematic discussions during the third open consultation", 30 May 2018

Clarifying jurisdiction is a cornerstone of a legally binding Instrument in order to guarantee the ability of victims to choose the forum where they seek to bring a case in response to violations committed by business enterprises. In order to attain access to remedy and justice, it is crucial to tackle barriers that victims face in accessing courts in jurisdictions linked to the transnational practice of business enterprises... Discussion in the OEIWG have indicated the value of achieving a level of convergence among different jurisdictions on the issue of legal liability of business enterprises involved in human rights abuses or violations, in order to protect the right of victims. Different examples were raised with regards to the recognition of criminal, civil and administrative liability of legal persons under domestic and regional systems, apart from the liability of natural persons. Clarifying the section of legal liability in the legally binding instrument could contribute to achieving legal certainty in the application of standards for both, victims as well as business enterprises. The OEIWG's discussions have also considered the need to prevent human rights violations or abuses by business enterprises. Preventive measures could serve as a cornerstone of the Instrument as such measures will avoid suffering of victims and incurring in litigations costs. Preventive measures could also assist States and business enterprises as analytical tools to prevent human rights violations by conducting human rights risk assessments.