Second open consultation on proposed binding treaty on business & human rights: Guiding questions for thematic discussions

Author: Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, Published on: 24 May 2018

"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", 25 May 2018

Scope:

...[T]aking into account that reaching a common understanding on the possible landing zone between the different views on the scope of the future legally binding instrument will help define the approach to other elements under the Instrument, the following guiding questions are put forward to facilitate the thematic discussion within the second open informal consultation:

a. Does your delegation consider that the approach focused on the conduct of the business enterprise rather than on the nature of the enterprise would be useful to determine the scope of  cover age of the Instrument? and what instruments could be used as examples in this regard? (i.e. the Convention against corruption, the Convention against transnational crime, inter alia).
b. Does your delegation suggest another effective alternative for approaching the definition of the subjective scope of the Instrument?
c. Does your delegation consider that the Instrument would require a definition pertaining to the business entities to be covered by the Instrument?

Jurisdiction:

...[T]aking into account the importance of having a better understanding of the possible landing  zone  between the different views on the issue of jurisdiction of the future legally binding instrument, the following guiding questions are put forward to facilitate the thematic discussion within the second open informal consultation:

a. Has your delegation considered circumstances in which courts could hear claims arising from conduct undertaken outside your territory? Which are the applicable principles of jurisdiction in such cases?
b. Is your country party to any treaty or convention which clarifies jurisdiction of courts in cross-border or transnational cases? How has it been implemented?
c. Does your delegation agree to an approach that would link jurisdiction over cases arising from transnational business conduct to place of incorporation/domicile, place of headquarters, and place of substantial business interest of the business enterprise involved?

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