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The Business and Human Rights Treaty and Private International Law

"BHR Symposium: The Business and Human Rights Treaty and Private International Law", 9 September 2020.

The draft treaty on business and human rights signals an intention to facilitate cross-border human rights litigation against businesses and associated cross-border cooperation...Unfortunately, anomalies within the draft treaty might facilitate new types of protracted proceedings, again frustrating the attempts of human rights victims to attain remedies against businesses...

Article 9.1 creates three grounds of jurisdiction. It provides that the courts of state parties have jurisdiction over claims for human rights abuses if the relevant abuse occurred in the state, if a relevant act or omission contributing to the abuse occurred in the state, or if the legal or natural persons alleged to have committed the abuse are domiciled in the state...

The most important jurisdictional provision of this draft is Article 9.3, which...stipulates that the courts designated in Article 9.1 “shall not decline [jurisdiction] on the basis of forum non conveniens (“FNC”)...Article 9.3 explicitly applies only to the cases brought under Article 9.1...The true scope of the rule excluding FNC must be clarified, or else extensive FNC arguments will continue to plague this field of litigation...

The five different grounds of jurisdiction established by Article 9 mean that in most cases the courts of more than one country will be competent to hear the same claim, creating the possibility of parallel proceedings...It would be desirable to have a more complete principle addressing parallel proceedings...

Article 11.1 provides that the applicable law is that of the forum, including its conflict of law rules...The application of forum law as such to matters of substance is controversial, because of its propensity to encourage forum shopping...

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