Improving Accountability and Access to Remedies for Corporate Human Rights Abuses

Business Related Human Rights Abuses and Piercing the Veil of Corporate Fiction: Improving Accountability and Access to
Remedies
Human Rights Watch investigates human rights abuses linked to the economic activities of
businesses, governments and key international institutions like the World Bank. We expose
harmful practices by multinational corporations that can devastate vulnerable communities. We
push tech companies to avoid complicity in government efforts to censor and persecute activists.
We show how government failures and predatory business practices can combine to heap misery
on the poor. We document the ways corruption in resource-rich countries can fuel abuse and
cripple health and education systems. And we use our voice and our leverage to push for real
change and help develop standards where they are lacking.1
ABSTRACT
European-based multinational corporations can cause or be complicit in human rights abuses in

third countries. Victims of corporate human rights abuses frequently face many hurdles when
attempting to hold corporations to account in their own country. Against this backdrop, judicial
mechanisms have increasingly been relied on to bring legal proceedings in the home States of the
corporations. This study attempts to map out all relevant cases (35 in total) filed in Member States
of the European Union on the basis of alleged corporate human rights abuses in third countries. It
also provides an in-depth analysis of 12 cases and identifies various obstacles (legal, procedural
and practical) faced by claimants in accessing legal remedy. On the basis of these findings, it
makes a number of recommendations to the EU institutions in order to improve access to legal
remedies in the EU for victims of human rights abuses by European based companies in third
countries.
Cases of serious corporate-related environmental and human rights abuses make the news
regularly. From the sourcing of conflict minerals , to banks financing megaprojects causing
irreparable damage to indigenous communities, to the use of slave labour in the production of food
sold in leading EU supermarkets - no sector is excluded from the corporate list of shame.
States have a duty to protect against business-related HR abuses. However civil society,
academics, legal experts and international organisations have long highlighted significant gaps in
the current legal framework, which contribute to corporations being able to act with impunity.
Companies’ ability to evade responsibility is greater when they operate in developing countries
where the legal system is frail or corrupt, and victims have little chance to access justice.
Addressing these gaps at national, European and international levels must be a priority for the
European Union and its Member States.
Introduction
The United Nations Guiding Principles on Business and Human Rights (UNGPs) constituted a
new development in the debate on business and human rights. The UNGPs are built on the ‘Protect,
Respect and Remedy' Framework and introduce three pillars in which action needs to be taken.
The first pillar focuses on the State’s duty to protect against human rights abuses, the second on
corporate responsibility to respect human rights and the third on the victim’s right to access an
effective remedy where their human rights are harmed. Over the past decade, much has been
written on these three pillars. More recently, attention has turned to the third pillar and how to
ensure access to remedies. Special attention is being given to how to hold companies to account
1 https://www.hrw.org/topic/business
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for their role in human rights abuses in third countries. This study aims to contribute to research
on this topic by focusing on cases in which EU companies are accused of human rights abuse in
third countries. This focus is becoming increasingly relevant in a world economy characterized by
a massive increase in trade in goods and a changed nature of trade. Goods and raw materials are
increasingly traded and produced through global supply chains. These global supply chains link
companies around the world and they link EU companies to providers and producers in the global
South. As a result, the responsibility of these companies for human rights abuses has become an
important issue. This is also amplified by current developments in relation to a possible UN treaty
on business and human rights. In July 2014, the UN Human Rights Council adopted a resolution
establishing an intergovernmental working group mandated to draw up an international legally
binding instrument on transnational corporations and other business enterprises with respect to
human rights (also referred to as the UN Treaty on Business and Human Rights).2 Several sessions
took place between 2015 and 2017, resulting in a “Zero Draft” presented in September 2018,
containing material for the future treaty. Article 8 of this draft, in particular, recognizes the right
of victims to ‘fair, effective and prompt access to justice and remedies’,3 and affirms that ‘State
Parties shall guarantee the right of victims, individually or as a group, to present claims to their
Courts, and shall provide their domestic judicial and other competent authorities with the necessary
jurisdiction... in order to allow for victim’s access to adequate, timely and effective remedies’. 4
Although initially reluctant, the EU is now involved in drafting this treaty, with two main
requirements: ‘ensuring that the scope of the discussion is not limited to transnational companies’,
and that ‘the treaty should be firmly rooted in the UNGPs’.5 The European Parliament in particular,
is ‘a staunch supporter of the binding treaty initiative’ and has ‘expressed full support for the UN-
level preparatory work’, recognising ‘the insufficiency of voluntary action’.6
The study shows that companies can be held to account for human rights abuses through a variety
of judicial and non-judicial state and non-state mechanisms. They differ inter alia in terms of who
has access, the procedures followed and outcomes. Currently, there is no exhaustive overview of
all possible mechanisms or finalized or ongoing cases. For the purpose of this study, we have
limited our focus to the use of judicial mechanisms in EU MS and aimed to provide an overview
of all relevant cases. This study also provides in-depth analysis of several court cases with the
objective of elucidating how existing opportunities and barriers to hold companies to account for
human rights abuses play out in concrete cases brought to courts in the EU MS. These case studies
detail the nature of the alleged human rights abuse, the relationship between the EU company and
the abuse, and the main facts and proceedings, including the current status or outcome of the court
case. For each of the cases we also attempted to identify the main enabling and constraining factors
for the claimants in accessing the courts and remedies.7
2 Resolution A/HRC/26/9, ‘Elaboration of an international legally binding instrument on transnational

corporations and other business enterprises with respect to human rights’, 14 July 2014.
3 Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational
Corporations and Other Business Enterprises, Zero Draft, 16 July 2018, Article 8(1).
4 Ibid, Article 8§2.
5 European Parliament, ‘Towards a binding international treaty on business and human rights’, EPRS Briefing,
April 2018, p. 10.

6 Ibid., p. 11.
7 http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603475/EXPO_STU(2019)603475_EN.pdf
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This chapter introduces the third pillar of the UNGPs and the judicial mechanisms available to
address corporate human rights abuses in third countries. It also maps out the different barriers to
access to justice frequently encountered by claimants.8 In Annex 1 the study gives an overview of
the different positions of EU bodies and other international organisations. Before we proceed,
some conceptual distinctions and definitions are needed. Victims are the persons or communities
whose human rights are directly affected by businesses.9 Stakeholders constitute a broader group
of persons and organisations which can have a specific stake in the case, which are indirectly
affected by the human rights abuses of businesses or which represent the victims. Businesses refer,
following the opinion of the Fundamental Rights Agency (FRA),10 to any form of business entity.
When referring to businesses, a distinction is often made between the parent company (large
multinational domiciled in an EU MS) targeted by the claim and the foreign subsidiary (operating
in a third country where the human rights abuse took place). One also needs to make a distinction
between access to justice and the right to an effective remedy. Access to justice refers to the right
to a fair judicial system. Judicial systems should have the capacity to address business-related
human rights abuses by providing adequate remedy for actual or potential victims. Effective
remedy refers to whether the remedy provided effectively redressed or repaired the harm caused.
11
Finally, throughout the literature the concepts of human rights violations and human rights
abuses are used interchangeably. In this study we consistently refer to human rights abuses
following the UNGPs.
 Third Pillar of the United Nations Guiding Principles
The third pillar of the UNGPs focuses on access to effective remedy for victims of human rights
abuses by businesses. There are three broad types of mechanisms which can be used for this
purpose: judicial mechanisms, state based non-judicial mechanisms and non-state-based grievance
mechanisms. State-based judicial mechanisms (referred to in principle 26 of the UNGPs) are
defined as ‘(the) appropriate steps to ensure the effectiveness of domestic judicial mechanisms
when addressing business-related human rights abuses, including considering ways to reduce legal,
practical and other relevant barriers that could lead to a denial of access to remedy’. 12 They are
discussed in the next section.
The state-based non-judicial grievance mechanisms include different forms of administrative
bodies which meet the effectiveness criteria of principle 31 of the UNGPs, namely mechanisms
which are inter alia legitimate, accessible, predictable, equitable, transparent and rights-compatible
(in line with internationally recognised human rights).13 The Office of the High Commissioner for
8 It goes beyond the scope of this report to provide a comprehensive and in-depth discussion of the literature.
Recent relevant publications which provide an extensive overview include Bright (2013), Rubio and Yiannibas
(2017), Enneking (2017, forthcoming), Chenoweth et al. (2017), Skinner, McCorquodale and De Schutter
(2013), Vandenhole and Rodriguez (2016) and Zerk (2014)
9 UN OHCHR, 2012
10 ‘Improving access to remedy in the area of business and human rights at the EU level’, Opinion of the
European Union Agency for Fundamental Rights, 1/2017, Vienna, 10 April 2017, p. 20. See also J. Wouters and
A.-L. Chané, ‘Multinational Corporations in International Law’, in M. Noortmann, A. Reinisch and C. Ryngaert
(eds.), Non-State Actors in International Law, Oxford, Hart Publishing, 2015, pp. 225-251; J. Wouters, C.
Ryngaert, T. Ruys and G. De Baere, International Law: a European Perspective, Hart Publishing, 2018.
State of play
11 Vandenhole and Rodriguez, 2016, p. 14
12 UNGP 2011, p. 28
13 UNGP 2011, pp. 33-34.
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Human Rights (OHCHR) project identifies four types of state-based non-judicial mechanisms.
First, there are complaint mechanisms at different administrative departments with public
regulatory and enforcement responsibilities. Second, inspectorates linked to different
administrative departments relevant for human rights such as labour ministries, environmental
ministries, etc. have grievance mechanisms. Third, there are different types of ombudspersons.
Finally, there are state-based mediation and conciliation bodies. Non-State-based grievance
mechanisms may encompass company-based or multi-stakeholder based grievance mechanisms,
as well as regional and international bodies. The OHCHR Accountability and Remedy project
(2018) identifies three types of non-state based grievance mechanisms. First, there are company-
based grievance mechanisms which are established and administered by businesses. 14 Second,
there are grievance mechanisms developed by industry, multi-stakeholder initiatives or other
collaborative initiatives including grievance mechanisms linked to international certification
bodies. Third, there are grievance mechanisms developed by international financial institutions,
which aim to provide a means by which a person (or group of people) whose human rights have
been adversely affected by an institution-financed project can raise a complaint with the financial
institution itself.15
 Judicial mechanisms
Different ways have been identified in which businesses can become implicated in human rights
abuses. A study on Corporate liability for Gross Human Rights Abuses has identified four
scenarios in particular, which are not exhaustive:
− cases where the company, its executives and or staff are accused of being directly responsible
for human rights abuses;
− cases where companies are providing goods, technology, services or other resources to
governments or State authorities which are then reported to be used in abusive or repressive ways;
− cases in which companies are accused of having provided information, assurance, logistical
support or financial support to other companies which are causing human rights abuses (for
instance when security services have been enlisted to assist the resolution of a dispute surrounding
the business activities or when a company provides a certificate of compliance with labour rights
to a company breaching these labour rights)
− cases in which the companies have made investments in projects or governments or State
authorities with poor human rights records or with connections to known abusers accused of being
complicit in human rights abuses.16
To this list, we could add another scenario covering the cases where companies are sourcing
products from suppliers which are committing human rights abuses.
Increasingly, companies have been brought to court in the EU to account for such type of human
rights abuses in third countries. Cases normally take either the form of criminal proceedings
initiated at the instigation of victims and NGOs, or the form of civil proceedings based on the
14 Office of the High Commissioner for Human Rights (2018), p. 10

15 Office of the High Commissioner for Human Rights (2018), p. 13
16 J. Zerk, 'Corporate liability for gross human rights abuses ...' op. cit., p. 6. Most cases covered in this study (see
next chapter) fall into one of the four categories. However, some cases such as the RWE are more difficult to
categorize in one of the four categories since the causal link and the specific human rights abuse fall less under
the category of gross human rights abuses.
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general principles of torts.17 Parallel civil and criminal proceedings arising out of the same conduct
are also possible in many jurisdictions.18 In some civil law jurisdictions such as France, Belgium,
or Ukraine, victims can join criminal proceedings as parties civiles.19 Overall, there have been a
greater number of legal proceedings brought against companies for human rights abuses in third
countries based on private law (civil liability) than there have been based on criminal law. 20 This
might be linked to the fact that lower thresholds in terms of applicable standards usually apply to
civil cases as opposed to criminal ones. Concerning criminal law claims, a survey carried out in
16 countries concluded that it was the prevailing practice (in 11 of the countries surveyed:
Australia, Belgium, Canada, France, India, Japan, the Netherlands, Norway, South Africa, the
United Kingdom, and the United States) to expand criminal liability so as to apply to legal persons
as well as natural persons.21
As far as private law claims are concerned, in the absence of civil regimes specifically designed
for human rights abuses (with the exception of the United States), claimants have been bringing
their claims on the basis of general tort law principles under domestic law.22 If these principles
vary from one domestic system to another, common features can be found and in particular
domestic law tests for liability in both common law and civil law jurisdictions are based either on
the intent of the perpetrator or on its negligence.23 Negligence claims often require the claimants
to show first, the existence of a duty of care owed to them by the defendant company; second, that
such duty of care was breached by the defendant; and third that the breach of duty caused the
claimants a damage.24 The burden of proof of the elements constitutive of civil liability usually
falls on the claimants and frequently poses a significant hurdle in accessing effective remedies,25
especially due to complex corporate structures and the lack of access to information and internal
documents preventing claimants from substantiating their claims.26
In 2011, the European Union (EU) and its Member States pledged full support to the UN Guiding
Principles on Business and Human Rights (UNGPs). The UNGPs build on international human
rights law and articulate both the States’ duty to protect human rights and ensure effective remedy
for victims of violations, as well as the companies’ duty to respect human rights. At the time, it
17 L. F.H. Enneking, ‘Judicial remedies: The issue of applicable law’ Rights in Business (Routledge, 2017), 38, pp.
40-41.
18 J. Zerk, 'Corporate liability for gross human rights abuses: Towards a fairer and more effective system of
domestic law remedies', report prepared for the Office of the UN High Commissioner for Human Rights,
available at:
https://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/StudyDomesticeLawRemedies
.pdf (last accessed on 26 November 2018), p. 43.
19 Ibid.,p. 45.
20 Ibid., p. 9.
21 Thompson and Ramasastry, p. 13
22 J. Zerk, 'Corporate liability for gross human rights abuses ...' op. cit., p. 45.
23 Ibid., p. 43.
24 Ibid., p. 44.
25 Ibid., p. 44.
26 Amnesty International, 'Injustice Incorporated: Corporate Abuse and the Human Right to Remedy',
2014.
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was hoped that this would mark the beginning of an ambitious EU agenda on business and human
rights, which would address the many challenges faced by those negatively affected by the activity
of EU companies.27
 Kinds of Business Human Rights Abuses28
The issues are not ranked in order of importance.
1. Reinforcing Citizen Participation in the Business and Human Rights Agenda, including by
Protecting Human Rights Defenders
The year 2014 saw the thirtieth anniversary of the Bhopal disaster in India, where a poisonous gas
leak from Union Carbide Corporation’s fertilizer plant killed thousands of people immediately and
over time. People in Bhopal and activists around the world have campaigned long and hard for
justice. Since then there has been mounting outcry in many parts of the world against corporations
over alleged human rights abuses. Human rights defenders who have spoken out against corporate
involvement in rights abuses or who campaigned on behalf of communities have faced
governmental surveillance and arrests. This is part of a wider global trend, which sees increasing
pressure on civil society in many countries around the world. In some cases, activist groups and
individuals are described as anti-development or anti-national, and in others, are accused of being
terrorists. The UN Working Group on Business and Human Rights has recently expressed concern
over the detention of activists and imposition of funding and registration restrictions on human
rights defenders in Azerbaijan. Michael Forst, the UN Special Rapporteur on Human Rights
Defenders, joined several of his UN colleagues to ask the Tasmanian Government in Australia to
withdraw legislation that targeted those who protested forestry, agriculture and mining. Companies
can no longer ignore activists. As part of their due diligence, they must conduct human rights
impact assessments, and to do so, they should undertake vigorous stakeholder consultation.
International standards have emerged to require companies to talk to communities, but at times
governments intervene and claim to speak on their behalf. In other cases, communities are not
interested in engaging with companies. Companies also find it difficult to identify who can speak
legitimately for a specific community. At times, communities lack capacity to engage with
companies. They may not have the same expertise companies do and may also be in a weaker
position than their government and powerless to demand accountability for provision of basic
services or protection of human rights. Companies should be aware of communities’ needs for
ongoing capacity building, and should facilitate their partnership with multilateral and bilateral
institutions as well as civil society organisations with capacity building programmes. In 2015,
companies will increasingly be called on to make major business decisions only after undertaking
rigorous due diligence, including by listening to affected communities and stakeholders and by
speaking up for human rights defenders. Companies will be under increasing pressure to choose
between their bottom-line imperatives and their commitment to respecting human rights for all.
2. Overcoming Barriers Preventing Access to Effective Remedies for Corporate Related

Human Rights Abuses
27 http://corporatejustice.org/priorities/11-business-human-rights
28 https://www.ihrb.org/library/top-10/top-ten-issues-in-2015
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Legal advocacy concerning corporate human rights abuses has focused largely on multinational
companies. But in many cases, egregious violations, including the use of forced and child labour,
abuses of migrant worker rights and sexual violence also occur in domestic companies, including
small farms, and small and medium sized enterprises. However, these victims cannot rely on
potential access to courts or other mechanisms (such as an OECD National Contact Point) overseas
to address their claims. With the scope of one of the few avenues to bring claims outside the
jurisdiction where they occurred - the US Alien Tort Claims Act - now restricted considerably
after the Supreme Court’s 2013 Kiobel judgment, greater efforts are necessary to strengthen access
to remedy in domestic jurisdictions. Several studies are underway to deepen understanding of
barriers to access to justice for both domestic and extraterritorial claims and to identify steps states
should take to meet their duty to protect victims of human rights abuses. The UN Office of High
Commissioner for Human Rights has launched a process aimed at creating a fairer and more
effective system of domestic law remedies in cases of serious corporate related human rights
abuses. A February 2014 study focused on identifying barriers to accessing justice at the domestic
level, highlighted how differences in domestic approaches are impacting the way domestic
remedial systems are used in practice. Numerous legal and procedural barriers currently exist such
as the impossibility of applying criminal law sanctions to corporate entities in some jurisdictions
as well as rules that restrict the ability of individual victims, their representatives and other
organisations (e.g. NGOs) to initiate and participate in legal proceedings. Practical and financial
barriers such as “loser pays” rules, lack of availability of experienced legal counsel and challenges
associated with collective action arrangements are also critical issues requiring action. This initial
OHCHR fact finding study is currently being followed up by a more in-depth process that will
include global consultations in 2015 and comparison of 20 jurisdictions covering six issues:
domestic law tests for corporate accountability; roles and responsibilities of interested states;
overcoming financial obstacles to legal claims; criminal sanctions; civil law remedies and
practices; and policies of prosecution bodies. The planned end-point of this effort is credible and
workable guidance for states. As momentum gathers during 2015 on a proposed legally binding
instrument on business and human rights, there will be increased pressure on governments to
demonstrate that they are using existing laws to provide effective remedy to victims of human
rights abuses in cases involving companies – domestic or foreign – or show they are taking steps
to change policies and laws to ensure such remedies can be provided domestically. Efforts to
deepen understanding of key barriers in this area should provide states with valuable information
they need to take action. States may soon find they are running out of excuses for inaction.
3. Scaling Up Efforts to Eradicate Forced Labour, Slavery and Trafficking from Services,
Manufacturing, and Global Supply Chains
Forced labour and human trafficking in global supply chains will continue to be an issue of major
concern in 2015. Companies associated with these practices are exposed to significant reputational
risk, and in some cases they have faced lawsuits. There is also adverse business impact, as
operational efficiencies are compromised. Chronic and dire poverty compels people seeking work
to enter into agreements with unscrupulous and criminal entities that compromise and undermine
their human rights. Companies cannot claim ignorance of such practices; they are expected to
know and take steps to eliminate the use of forced labour and avoid actions that contribute to
trafficking. Progressive companies are increasingly seeking to form long-term relationships and
work in partnership with their suppliers to improve practices. But these efforts are often hampered
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by complex supply chains, which distance the main business from those tiers of their operations
continents away in different environments and answerable to different regulations. Companies do
not always have leverage: many operate with relatively small capacity and with a diverse supplier
base. Such companies have limited ability to effect change. However, addressing this issue is no
longer optional.
The UN Guiding Principles on Business and Human Rights explicitly makes clear states’ duties to
protect human rights from abuses involving non-state actors, including companies. In many
countries, however, government ability to protect worker rights and create an environment that
encourages responsible business is constrained, either through lack of resources, endemic
corruption or simply unwillingness to act. The past year saw some encouraging signs of progress.
In September 2014, a coalition of companies, who are members of the Ethical Trading Initiative,
explicitly stated the importance of ensuring protections for both workers and legitimate law
abiding businesses. In a joint response to UK Government proposals for the UK Modern Slavery
Bill the coalition noted:
“Voluntary initiatives and partnerships can achieve vital progress in improving standards and
tackling modern slavery. But effective and strong regulation can ensure such change occurs across
industries, not just in the supply chains of responsible businesses.”
Also in 2014, Hewlett Packard announced that it would recruit workers in future only directly, and
not rely on recruitment agencies, with a view to prevent the likelihood of trafficking or forced
labour contaminating its supply chain and Coca Cola issued new supplier guiding principles which
amongst other commitments confirmed that any recruitment fees should be paid by the employer
and not the worker. The new Protocol to ILO Convention 29 on Forced Labour unanimously
agreed in June 2014, is another important signal that governments must act. This protocol brings
Convention 29 up to date and explicitly references human trafficking, migrant workers and the
role of recruitment agencies. After ratification, the protocol can form the basis for improved
national legislation to ensure worker protection.
4. Strengthening Trade Union Movements in an Era of Growing Casualisation of Work
Globalisation has transformed the way we work. Changes in the global economy have created
many employment opportunities that did not exist earlier, but have also brought an end to jobs in
many countries. Under the new business paradigm, short-term contracts and agency workers are
quickly becoming the norm. These realities leave many workers exposed to a downward spiral of
low pay, poor conditions and insecurity. In some supply chains, workers are subjected to dangerous
working conditions or forced or bonded labour. Trade unions face real challenges in establishing
themselves in workplaces and must overcome new barriers to recruiting, organising, and protecting
workers in the same ways they did previously. Yet while union power has declined over recent
decades, there are signs that unions are developing new ways to respond. Some unions are
becoming far more community based, bringing together and creating coalitions of different groups
to work on shared issues of concern. Where unions are unable to organise in the workplace, they
are increasingly able to find allies to advocate for their agenda.
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Examples of community organising can now be seen throughout the world. One such example is
a campaign in the UK around Living Wage, which brings together the union Unite and Citizens
UK (Formerly London Citizens) with a wider coalition to demand better conditions and pay for
London’s hotel workers. In the Global South unions are engaged within a range of small-scale
projects working alongside other civil society organisations to find new ways to reach out and
organise workers, in particular those working informally. Other unions such as the Self-Employed
Womens' Association have been based around community organisation from their foundation.
New international bodies, which create federations of smaller unions, are also part of union
responses to a rapidly changing environment. IndustriALL is one such example. Such coalitions
enable unions to negotiate with large business entities on a more equal footing. Effective,
knowledge-led unions can be an important resource in ensuring protection for workers as well as
bolstering operational efficiencies for business. Where companies face reputational and
operational risks through their supply chains, unions are key allies in identifying and overcoming
both workplace and societal challenges – not just in articulating and dealing with grievances but
also improving operational practices. One such example is the involvement of IndustriALL in the
Bangladesh Accord, one of the major responses to the 2013 Rana Plaza factory tragedy where
more than 1,100 people died. The Accord aims to improve health and safety management at
garment exporting factories in Bangladesh. The involvement of the union has been key to the
credibility and operation of the Accord process. Building on this initiative, a number of garment-
buying fashion retailers have been working in partnership with the union to pay living wages in
Cambodian garment factories. Constantly evolving and rapidly changing forms of work will
continue to be an essential feature of globalisation. In 2015, we expect to see more efforts aimed
at strengthening trade unions to ensure that workers’ rights are protected and not undermined.
5. Protecting the Right to Privacy and Ending Mass Surveillance of Digital Communications
Concerns continued to rise during 2014 over mass surveillance practices of government
intelligence agencies. The human rights community has been vocal in opposing the bulk collection
of data as an unjustified infringement on the right to privacy with significant adverse impacts on
other rights, including freedom of expression, assembly, information, and political participation.
A 2014 report by the UN Office of High Commissioner for Human Rights on The Right to Privacy
in the Digital Age stated that mass surveillance is “emerging as a dangerous habit rather than an
exceptional measure” and that practices in many States reveal “a lack of adequate national
legislation and/or enforcement, weak procedural safeguards, and ineffective oversight.” Ben
Emmerson, the UN Special Rapporteur on the promotion and protection of human rights while
countering terrorism, stated in his recent report: “The adoption of mass surveillance technology
undoubtedly impinges on the very essence of that right [to privacy].” The debate is still far from
being resolved, but ICT companies implicated in mass surveillance are taking steps to restore user
trust. For example, Apple and Google are strengthening encryption of mobile services as a default
measure, making it extremely difficult for anyone to access user data unlawfully. Corporate
encryption is in response to accusations of government surveillance and has prompted criticisms
from several governments that such technologies will enable terrorists to act, as we noted here. In
the UK, the recent Intelligence and Security Committee (ISC) report into the murder of Fusilier
Lee Rigby, criticised global tech companies for not doing more to prevent terrorists
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communicating online, overshadowing the fact the report also identified several failures on the
part of the security and intelligence services. Following on from a UN Resolution adopted last year
on the right to privacy in the digital age, a new resolution states that the legal framework of
surveillance must be clear and publicly accessible; considers the interception of metadata to be a
highly intrusive act; and calls for access to remedy for individuals whose right to privacy has been
violated because of surveillance. The resolution also encourages the UN Human Rights Council
to consider appointing a UN Special Rapporteur on the Right to Privacy. A global debate on the
use of mass surveillance techniques is taking shape. Without this, it is impossible to assess whether
such programmes are proportionate to serious terrorism threats. And in vast parts of the world,
scrutiny of intelligence agencies has not even begun. In 2015, intelligence agencies will face
stronger calls, including by ICT companies, to publicly argue their case for bulk collection of data.
Transparent and clear rules are needed that protect public safety without unduly compromising
individual liberty.
6. Ensuring Corporate Use or Acquisition of Land Does Not Undermine the Rights of Small
Farmers and Local Communities
Businesses have legitimate needs to use or acquire land to carry out any number of economic
activities. But too often, land acquisition and use by companies results in adverse human rights
impacts for local communities and others who have prior claims to the land, as users, tillers, or
owners. Severe impacts on livelihoods and living standards of small farmers and local
communities can accompany large-scale land acquisition necessitated by agricultural and forestry
projects, among others, particularly in land-scarce regions. 2014 saw several new developments in
efforts to combat land grabs. For example, in January, India’s new Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into
effect. The new Act establishes regulations for land acquisition and sets rules for granting fair
compensation, rehabilitation and resettlement to affected persons. Many other countries are
considering changes to their land acquisition laws. Ethiopia, Laos and Cambodia have all called
temporary or permanent halts to large-scale land acquisitions. In October 2014, the Committee on
World Food Security (CFS) approved Principles for Responsible Investment in Agriculture and
Food Systems. These Principles should guide investment in agriculture and food systems, so that
cross-border and corporate investment flows lead to improved food security and sustainability and
respect the rights of farm and food workers. They build on the Voluntary Guidelines on the
Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food
Security, endorsed by the CFS in May 2012.
This new multilateral commitment is undoubtedly a step in the right direction but the value of the
new Principles will depend on whether they change practices on the ground in ways that improve
the lives of local small scale producers. Civil society groups following the process have welcomed
their references to human rights but justifiably questioned how these will be applied in the context
of trade provisions. The campaign against land-grabs started to show some traction in the business
world during 2014. Several companies (PepsiCo, Coca-Cola, and Nestle) came forward and
pledged zero land-grabs in their supply chains. Also of note, contracts for extractive industries and
large-scale agricultural projects are increasingly being collected and analysed. Taking a cue from
the oil, gas and mining sectors, which are slowly moving toward greater transparency in revenues
and contracts with governments, will 2015 see a new movement for transparency of agricultural
contracts? That would be a positive move, but just one step in the longer road towards deeper
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understanding of how to make contracts and the accountability that should accompany them
deliver positive results for the lives of millions of small holders, contact framers, migrant
agricultural workers, and communities.
7. Developing Policy and Regulatory Architecture to Tackle Human Rights Abuses Arising
from Tax Avoidance and Illicit Financial Flows
Year after year, developing countries lose more than $1 trillion due to crime, stolen public
property, bribery, corruption and tax evasion. These illicit financial flows are compounded by
illicit trade in goods and commodities such as weapons, drugs, minerals and gems, timber, and
human organs, as well as trafficking of people and smuggling of migrants. Human rights violations
accompany every turn of these financial flows. The ultimate destination of illicit funds, laundered
as they flow, is often the safe shores of developed countries.
Today, there are multiple initiatives and approaches to combat illicit financial flows, including the
ongoing efforts of the OECD, G20 and G8. In 2014, the Financial Action Task Force (FATF)
issued guidance on transparency and beneficial ownership, designed to prevent the misuse of
corporate vehicles, such as companies, trusts and other types of legal persons and arrangements
for money laundering, terrorist financing and other illicit purposes. The OECD also sponsored an
agreement for automatic exchange of tax information, meant to eliminate banking secrecy and
reduce international tax fraud and evasion. The OECD BEPS Project aims to create a coherent set
of international tax rules to end the erosion of national tax bases and the artificial shifting of profits
to jurisdictions solely to avoid paying tax. Human rights campaigners are teaming up with financial
experts to enhance due diligence to detect signs of trafficking, as seen in a due diligence tool called
Finance Against Trafficking. The financial integrity movement is also focusing on the human
rights consequences of lax financial integrity. The New Haven Declaration on Human Rights and
Financial Integrity articulates this link: “Human rights and international financial integrity are
intimately linked…Today, large outflows of illicit money – many times larger than all
development assistance – greatly aggravate poverty and oppression in many developing countries
. . . We. . . call for decisive steps to ensure that developing countries can retain their resources for
sustainable growth and poverty alleviation, which they must achieve if the human rights of all
people are to be realized.”
Human rights abuses can also arise from legal transfers of money as the financial crisis and
subsequent austerity measures demonstrated. The massive risk taking leading up to the crisis
resulted in widespread severe human rights impacts and subsequent austerity measures have
significantly constrained government budgets in delivering services, further marginalizing
vulnerable groups. In 2014, the United Nations Environmental Programme (UNEP) began a two
year Inquiry into a Sustainable Financial System. IHRB recently co-hosted a discussion with
UNEP to understand the linkages between fiscal and monetary policies, financial regulations and
human rights. The discussion confirmed several obvious and less obvious linkages, and the value
of adding a human rights lens to monetary and fiscal policy to contribute to a sustainable financial
system. Will 2015 be the year in which the human rights dimensions of financial flows – licit and
illicit – are further exposed, through the efforts of the UNEP Inquiry and other initiatives?
8. Combating Sexual Violence in the Workplace
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Sexual violence is arguably the most widespread of human rights abuses and is grossly
underreported. Sometimes the workplace is a sanctuary from violence and harassment in the wider
society. In other cases, it is the work itself that provides the venue for such harm.
During 2014, over two thirds of UN member states signed a declaration on the elimination of
sexual violence in conflict. These countries have agreed that there should be no amnesty in peace
agreements for those found guilty of rape. However, there is no direct reference to the role of
business in the declaration, and arguably business related sexual violence in conflict has not
received the attention required.
The incidents of sexual violence by guards at the Pogera mine in Papua New Guinea and the
controversy over the subsequent remedy framework put in place may be the cases that start to
generate more focused attention on the potential for business related actors to engage in sexual
violence in a range of conflict settings.
Outside of conflict situations, key workplace risk factors for sexual violence identified by the ILO
include: sex-segregated workplaces, pay discrimination, precarious contracts and the lack of
female worker representation. Key vulnerable groups include domestic workers, migrant workers,
lower-status workers, service sector workers and sex workers. Men and boys, as well as women
and girls, can also be vulnerable to such exploitation in specific contexts.
While women can face harassment in manufacturing jobs, these environments can be safer than
sectors such as health services or agriculture. In 2012, Human Rights Watch reported that the
prevalence of sexual violence in agriculture in the USA was serious. In East Africa, a culture of
sexual favours persists in many parts of the agricultural supply chain including large tea plantations
and some estimates indicate nearly half of all women experience some form of sexual violence. In
India, the issue of sexual violence has become an issue of national shame and again it is women
working in the fields that are amongst the most vulnerable to rape and murder.
Will we see greater attention to combating workplace sexual violence in 2015? There are some
signs of action. For example, in the USA efforts to better protect thousands of fieldworkers are
gathering momentum and in India, the new Prime Minister promised action in his first
Independence Day speech. Important too is representation – Norway, Sweden and Australia have
taken steps to ensure gender diversity on panels and boards. This is a small but important step and
one in which men can also play a key role. Much more is needed and companies could begin to
demonstrate leadership in this area as well. One step in this direction would see food and retail
companies making public commitments to ending sexual violence in their supply chains.
9. Making the Private Sector Role in the UN Sustainable Development Goals (SDGs) work
for Human Rights
In 2015, the United Nations will adopt new Sustainable Development Goals (SDGs) to chart the
course for the international development agenda to 2030. An initial draft set of goals and targets
was proposed in August 2014, developed by an inter-governmental Open Working Group. They
present 17 goals across a gambit of pressing issues, from poverty eradication (Goal 1) to
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employment and decent work (Goal 8) to climate change (Goal 13) to access to justice and
accountable institutions (Goal 16). The UN Secretary-General has recently released a Synthesis
report as the latest contribution to the post-2015 agenda setting process.
Both the Working Group’s draft and the Secretary-General’s report seek to reflect the role of the
private sector in a way that was missing from the Millennium Development Goals, acknowledging
the contribution business can make to economic growth and innovations fostering sustainability.
However, it’s long been acknowledged that business activities can also adversely impact people
and the environment. The Secretary-General’s report broadly references the benefits that ‘an
enabled, properly regulated, responsible’ private sector can offer to sustainable development, but
does not seize the opportunity to reaffirm state duties in setting frameworks for responsible
business or the baseline expectation that businesses’ contribution to promoting economically,
socially and environmentally sustainable development starts with respecting the rights of those
affected by their activities. The Secretary-General’s report does take a welcome step forward from
the Open Working Group’s draft in terms of acknowledging some key standards. It explicitly
references the UN Guiding Principles on Business and Human Rights, ILO core labour standards
and UN environmental standards as those to which investment policies implementing the SDGs
should align. It also seeks to raise the bar around corporate reporting, encouraging states to adopt
mandatory Economic, Environmental, Social and Governance (EESG) reporting regimes which
would, if implemented, create a vital new layer of transparency in these areas. The Synthesis report
also makes a brief reference to ‘principled and responsible’ public-private partnerships, which are
being positioned as one of the key means of implementing the SDGs. Hundreds of such
partnerships exist between governments and other actors, including companies, and take many
forms in seeking to address many development challenges. But despite their numbers, there isn’t
yet solid evidence or shared views on what good practice looks like. Effective tools for evaluating
the governance and impacts of such partnerships must still be developed.
In advance of finalizing the SDGs in September 2015, and in an effort to contribute to

understandings of what ‘principled and responsible’ partnerships look like in practice, IHRB will
be reviewing the “state of play” of a selection of ongoing partnerships and how they set policy
objectives, develop governance structures, adopt operating and performance standards, and
incorporate accountability mechanisms. The aim is to examine the extent to which these
partnerships are consistent with international human rights standards including how they prevent
and remediate the unintended adverse impacts of their interventions.
10. Strengthening State Approaches to Implementing the UN Guiding Principles on Business

and Human Rights, including through National Action Plans
Since the 2011 endorsement of the UN Guiding Principles on Business and Human Rights, much
of the focus of implementation efforts has understandably been on building awareness amongst
companies and encouraging positive incentives for them to act on their responsibilities. A growing
number of tools for companies are now available, including sector guides and other resources.
Incorporation of bespoke due diligence requirements in binding rules and regulations such as US
reporting requirements for companies investing in Burma-Myanmar, Dodd-Frank conflict
minerals provisions, and an EU non-financial reporting Directive, amongst others, are also notable
developments. Far less attention has been paid to the progress States have been making to
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implement the expectations set out in the UN Guiding Principles under the State Duty to Protect
Human Rights. But this is beginning to change as can be seen in IHRB’s 2014 review of the “state
of play” of how over 70 States are incorporating various rights related incentives and disincentives
in wide-ranging economic policy approaches.
One major development in 2014 was the increasing prominence given to State efforts to implement
the Guiding Principles through the development of National Action Plans (NAPs) on business and
human rights. Following on from the European Commission 2011 Communication on CSR, which
invited EU Member States to develop such plans, the UN Working Group on Business and Human
Rights, National Human Rights Institutions (NHRIs), civil society groups and academics have
joined the call. As of December 2014, the governments of the United Kingdom, the Netherlands,
Italy, Denmark, Spain and most recently Finland, have adopted NAPs. And uptake has begun to
expand beyond Europe, with numerous plans under development globally, including recent
commitments from the United States, Tanzania, and Colombia, amongst over a dozen others. At
the same time, the balance has not tipped, with the vast majority of countries yet to commit to
developing business and human rights NAPs. Given the limited number of plans to date, the
content and approach has varied. And while NAPs can take many forms and no one size fits all,
efforts to establish a baseline approach to their development, monitoring and evaluation processes
will continue in 2015. It will also be a telling year for holding states to account for implementing
the commitments made and targets set. This will include reporting on challenges and lessons
learned, as well as clear plans for progressive next steps in improving the effectiveness of policies,
legislation, regulation and adjudication to prevent, investigate and account for adverse human
rights impacts involving business.
 Barriers to Access to Justice - Legal Remedies
Three key categories of recurrent obstacles to justice and reparation that victims of business-
related human rights abuses face when seeking legal remedies have been identified in a
study carried out by Amnesty International. The study draws on four case studies: the Bhopal
gas leak disaster in India, the Omai gold mine dam rupture in Guyana, the OK Tedi mine
waste dumping in New Guinea, and the hazardous waste dumping in Côte d'Ivoire. 29 The
first category concerns legal challenges and includes issues related to the difficulty for
claimants to secure legal representation, the complexity of corporate structures, the difficulties
in establishing parent company liability, and the jurisdictional challenges faced by claimants.
The second category revolves around the lack of access to information that is essential for
victims to support their claim. The third category concerns the power of influence of
multinational companies which can result in States being unwilling or unable to develop
regulatory and/or legal instruments to hold companies to account. Zerk identifies three crucial
phases to initiate a case.30 In each phase specific barriers can occur. First, there is the phase
of getting started which can be inhibited by lack of funding, refusal of standing and lack of
access to legal counsel. The second phase is surviving motions of dismissal which includes forum
non conveniens. The third phase constitutes the applicable tests for corporate liability (e.g.
of the parent company). Obstacles to access to legal remedies extend throughout the court
process to include procedural issues of time limitations and access to information, as well
29 Amnesty International, ‘Injustice Incorporated’, op. cit.

30 Zerk, ‘Corporate liability for gross human rights abuses’, op. cit., p. 100.
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as legal obstacles (such as issues of applicable law), up to the end of the judicial proceedings
(with issues surrounding access to effective remedies).31 As a result, States are failing to
meet their obligation to protect human rights and ensure effective access to judicial remedies
to victims of businesses operating outside their territories.32
 Legal barriers that can prevent legitimate cases involving business-related human
rights abuse from being addressed
The UNGPs tackle the issue of access to remedy, and more particularly the obstacles that
can prevent or complicate such an access. Principle 26, in particular, lists possible barriers
that ‘could lead to a denial of access to remedy’. These barriers are the following: Attribution
of legal responsibility among members of a corporate group. Large transnational corporate
groups are ‘organized as a network of distinct legal entities, with variable degrees of
influence exercised by the parent company over its subsidiaries (…), by one business on its
business partner (…), within joint ventures and consortium, and by other corporate
structures’.33 Under the company law doctrine of separate legal personality, each separately
incorporated legal entity within a corporate group is treated as having a separate existence
from its owners and managers,34 and is governed by the law of its country of incorporation.
This entails that the parent company will not automatically be held liable for the actions
or omissions of its subsidiary merely on the basis that it owns shares in the subsidiary
(even a wholly owned one).35 The difficulty in holding parent companies legally accountable
for the human rights harms arising out of the activities of their subsidiaries is thought to
be one of the main hurdles faced by claimants in cases involving business-related human
rights abuses.36 Lifting the corporate veil, to attribute the acts or omissions of a subsidiary
to a parent company can be a very challenging process. The obstacle of the corporate veil
can sometimes be circumvented by establishing the liability of the parent company on the
basis of its own negligence in the way the subsidiary was managed.37 However, this also
requires the claimants to gather evidence regarding corporate structure which the claimants
often struggle to get access to in practice.38 These challenges applies to an even greater extent
in relation to suppliers and other business relationships of the company. Denial of justice
in the host State and difficulties in accessing home State courts. Issues relating to effective
31 G. Skinner, R. McCorquodale, O. De Schutter, 'The Third Pillar - Access to Judicial Remedies for Human
Rights Violations by Transnational Business', December 2013 available at:
https://static1.squarespace.com/static/583f3fca725e25fcd45aa446/t/58657dfa6a4963597fed598b/14830
46398204/TheThird-Pillar-FINAL1.pdf (last accessed on 25 February 2019).
32 Ibid., p. 13.
33 Skinner, McCorquodale and De Schutter, ‘The Third Pillar’, op. cit., p. 56.
34 UN High Commissioner for Human Rights, 'Improving accountability and access to remedy for victims
of businessrelated human rights abuse' op. cit., p. 9.

35 Zerk, ‘Corporate liability for gross human rights abuses’, op. cit., pp. 65-67. See also Vandenhole and
Lizarazo Rodriguez, ‘UNGP on Business and Human Rights…’, op. cit., p. 45.
36 Amnesty International, ‘Injustice Incorporated’, op. cit.
37 UN High Commissioner for Human Rights, 'Improving accountability and access to remedy for victims
of businessrelated human rights abuse' /HRC/32/19, 10 May 2016, p. 9

38 Zerk, ‘Corporate liability for gross human rights abuses’, op. cit., pp. 65-67. See also below about the
difficulties accessing the information necessary to prove a claim, as well as Vandenhole and Lizarazo
Rodriguez, ‘UNGP on Business and Human Rights…’, op. cit., pp. 90-91, and Amnesty International,
‘Injustice Incorporated’, op. cit., pp. 122-127.
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access to justice often arise when victims of corporate human rights abuses bring proceedings
in their own country as host States are frequently unwilling or unable to hold companies
accountable for their human rights impacts for fear of losing foreign direct investment. Hurdles
to accessing legal remedies are particularly acute when the host State is a developing country
and faces one or several of the following challenges: underdeveloped justice system, lack
of respect for the rule of law, weak enforcement mechanisms, lack of judicial independence,
issues of corruption among state officials, or lack of measures to ensure protection of victims
and human rights defenders from intimidation and threats or reprisals. 39 In this context,
claimants often seek justice before the home State courts. However, establishing jurisdiction in
the company’s home State can prove difficult for the claimants who are faced with recurrent
jurisdiction hurdles.40 Examples of these include the doctrine of forum non conveniens, which
can ‘prevent a case from moving forward in jurisdiction in which it is filed on the basis
that another jurisdiction is the more appropriate venue for the case due to the location of the
parties, witnesses, evidence, and given that the local court is more familiar with the local law,
which is often the law applied in the case’.41 Although the European Court of Justice (ECJ)
has ruled out the applicability of the doctrine of forum non conveniens in claims against EU
domiciled defendants brought before EU MS courts,42 it is, however, applicable in many
common law countries such as Canada, the USA and Australia and might well be reintroduced
in the UK in cases involving UK domiciled defendants following Brexit. Other jurisdictional
hurdles include the difficulties in establishing the jurisdiction of the home State courts over
both the parent company and its foreign subsidiaries, subcontractors or suppliers. In addition,
claimants such as associations and NGOs can also encounter standing issues. 43 Finally, in
criminal law cases, prosecutors have discretion on whether or not to pursue a legal action,
which also creates challenges.44 Exclusion of specific social groups. Although human rights
are theoretically universal, particularly vulnerable groups such as indigenous people do not,
in practice, enjoy the same level of legal protection of their human rights as most people.45
For example, with regard to indigenous people, ‘the lack of control and accountability
mechanisms constitutes a major impediment to effective and adequate remedy’ in case of
human rights abuses by corporate entities.46 Migrants form another particularly affected part
of the population due to their particular vulnerability which means that they may be ‘unable
to effectively enjoy their human rights, are at increased risk of violations and abuse’, and
are often unable to access judicial remedy.47 In particular, they may face marginalization,
exclusion, or discrimination when seeking judicial remedy.
39 C. Bright, ‘L’accès à la justice civile en cas de violations des droits de l’homme par des entreprises
multinationales', op. cit., p. 31.
41 Skinner, McCorquodale and De Schutter, ‘The Third Pillar’, op. cit., p. 6. See also Vandenhole and
Lizarazo Rodriguez, ‘UNGP on Business and Human Rights…’, op. cit., p. 94.
42 Owusu v Jackson and Others, C-281/02 [2005] ECR I-1383
43 Zerk, ‘Corporate liability for gross human rights abuses’, op. cit., pp. 75-77.
44 Ibid., p. 75
45 Office of the High Commissioner, ‘Indigenous Peoples and the United Nations Human Rights System’,
Fact Sheet No. 9, 2013.

46 European Parliament, Report on violation of the rights of indigenous peoples in the world, including
land grabbing, 29 May 2018, 2017/2206(INI).

47
Office of the High Commissioner and Global Migration Group, ‘Principles and Guidelines, supported by
practical guidance, on the human rights protection of migrants in vulnerable situations’, 2017.
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 Practical and procedural barriers to accessing judicial remedy
Costs of bringing a claim. Seeking remedy in Europe can prove very costly for the
claimants as a result of the cost of legal and technical experts, translators when required,
the costs associated with gathering evidence in a foreign State to support a claim, and the
fact that cases can take over a decade in court.48 Claimants often face difficulties in securing
the necessary financial resources to be able to pursue their claim as legal aid is not usually
available to alleged victims of human rights abuses occurring outside the EU. 49 In addition,
many European States require the losing party to pay the costs of the other party, including
the lawyers’ fees, which can have a dissuasive effect when the prospects of success are
low.50
Difficulties in securing legal representation. The aforementioned limited availability of legal

aid can have consequences on the possibility to secure legal representation. In addition,
claimants can face a lack of access to suitably qualified and experienced legal counsel, as
few lawyers and law firms are willing to represent them since ‘the litigation is so complex,
and the outcomes so uncertain, and the prospect of securing sufficient legal aid to cover
costs so unlikely’.51 However, this barrier is beyond the scope of this study as the cases
selected already reached the Court stage, meaning that the victims were able to secure legal
representation.
Inadequate options for aggregating claim. Class or collective actions can be an effective
way for a large number of victims to access remedy, especially because they ‘have the potential
to reduce legal fees and risks for claimants’.52 However, most European States have not
adopted class action mechanisms,53 although some analogous mechanisms have been created.
In addition, even where class actions are possible (e.g. in the United Kingdom), ‘considerable
negotiation is required between each party’s lawyers for the process to be effective, and it
remains at the discretion of the court to allow it’.54
State prosecutors lack adequate resources and expertise to investigate. Public prosecution
often lacks resources, know-how, or even time to deal with complex transnational cases
involving corporate human rights abuses. Some countries have created specialised units to
remedy this potential barrier, but in many cases, prosecutors might prefer spending time
and resources on fighting national crimes because of ‘the extra efforts required to get access
to victims, to evidence, the unfamiliarity of the judges with the issues at hand, and the costs
of undertaking international prosecutions' in transnational civil litigation cases. 55

49 Ibid.
50 Ibid., p. 10. See also Enneking, ‘Judicial remedies’, op. cit., p. 68.
51 Zerk, ‘Corporate liability for gross human rights abuses’, op. cit., pp. 81-82.
52 Ibid., p. 82.
53 Skinner, McCorquodale and De Schutter, ‘The Third Pillar’, op. cit., p. 10. See also Zerk, ‘Corporate liability for
gross human rights abuses’, op. cit., p. 82. See also Enneking, ‘Judicial remedies’, op. cit., p. 68.
55 Thompson and Ramasastry, op. cit., p. 18. See also Zerk, ‘Corporate liability for gross human rights abuses’,
op. cit., p. 84.
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Corruption and political interference. In many host States, courts can face interference
or pressure by political or private actors,56 and claimants, witnesses and human rights
defenders may encounter fear of reprisals and intimidation.57 In some cases (not limited to
host States), intimidation can reportedly take the form of retaliatory litigation, when victims
or NGOs face claims by businesses in response to their claims.58
Difficulties accessing the information necessary to prove a claim. Victims may have
difficulties in gaining access to the information required to substantiate their claim.59 In most
EU MS, this constitute a particular important barrier as there is no discovery or disclosure
rule obliging the defendant to divulge information in its possession. 60 This, in turns,
contributes to the difficulties in lifting or circumventing the corporate veil, since claimants
may face issues when trying to establish the liability of the parent company in relation to
the human rights abuses arising out of its subsidiaries activities (see above).
While businesses can have an impact on human rights, victims may struggle to find justice despite
various initiatives to improve respect for rights. Businesses, their subsidiaries and suppliers in what
they do or do not do can affect the rights of workers, clients and the public. This can infringe
workers’ rights, the right to privacy, be discriminatory, can lead to ill-health, or have an impact on
many other human rights. Access to justice, a right in itself, can also be jeopardised. This is being
increasingly recognised by European and international bodies from the UN to the Council of
Europe and the EU who have developed guidance, strategies, policies, and laws.
To explore what more the EU can do, the EU Council asked the Agency to provide its Opinion on
improving access to remedies when it comes to business and human rights. Some of the
suggestions include:
Making judicial remedies more accessible: Victims often turn to courts when it comes to seeking
justice. However, issues such as deciding which court to turn to, costs, the complexity and length
of proceedings, can cause obstacles. To make it easier for victims, the EU should create minimum
standards for legal aid and improve funding for legal support, particularly for vulnerable people
such as children or people with disabilities. The burden of proof should also be shifted from victims
to companies with clearer minimum standards on what evidence businesses should make
accessible.
Supporting cross-border cases better: As globalisation and the EU’s Single Market has made
cross-border business more common, it is harder for victims to seek redress from companies based
elsewhere or when rights violations happen abroad. To help, the EU should provide guidance so
that there is a common understanding across Member States on how to proceed with cross-border
cases. This could include drawing on how environmental cases are treated, by allowing exceptions
56 Vandenhole and Lizarazo Rodriguez, ‘UNGP on Business and Human Rights...’, op. cit., p. 73.
57 Zerk, ‘Corporate liability for gross human rights abuses’, op. cit., pp. 83-84..
58
Skinner, McCorquodale and De Schutter, ‘The Third Pillar’, op. cit., p. 46.
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to existing rules. This would ensure high enough EU-level damages are awarded to deter
businesses from abuse in countries that can be more lenient towards business.
Using criminal justice systems: Although EU laws cover corporate crime in relation to business
and human rights, they are rarely used. The EU should therefore promote the greater use of existing
laws. This could include EU-wide data collection on complaints and compensation, training,
improving the human and financial resources of law enforcement to tackle such crime as well as
guidance for victims in claiming for damages in criminal procedures.
Providing alternatives through non-judicial remedies: Non-judicial mechanisms can be more

accessible, quicker and cheaper. The EU should therefore strengthen such mechanisms by creating
minimum standards that also allow collective redress, by establishing well-resourced national
contact points to advise victims on remedies and by encouraging companies to create their own
grievance mechanisms.
Improving transparency and data collection: Different Member States take different
approaches when it comes to access to remedies for business and human rights which makes it
difficult for companies to operate and victims to seek justice. National action plans are often
lacking and vague. The EU needs to encourage Member States to develop action plans that also
include access to remedies and clear indicators to measure achievement. The EU should also
provide information on available remedies, how they work and perform, possibly with comparative
assessments and coordination across the region. This would provide greater transparency and
would aid understanding among the public, legal practitioners and ultimately victims. Establishing
EU-wide networks to share knowledge, guidance and best practices would also help. In addition,
the EU should publish information from companies which must disclose the impact of their work
on rights under EU law. It could also encourage Member States to oblige companies to
systematically assess the impact on human rights of new activities as part of their planning.
This Opinion provides a range of advice on how they could improve access to remedies for victims
of rights abuse by businesses. It aims to contribute to growing awareness of the need for them to
do more to strengthen access to judicial and non-judicial remedies.
FRA issues Opinions on specific thematic topics, following requests for advice from the European
Parliament, the EU Council or the European Commission. These Opinions are part of the agency's
fundamental rights assistance and expertise that it provides to EU institutions and Member States.61
Recommendation
As the Office of the United Nations High Commissioner for Human Rights has elaborated in his
Consultation Draft of policy objectives it was provided that the recommended action to improve
the effectiveness of State-based non- judicial mechanisms that are relevant to the respect by
business enterprises of human rights
61
https://fra.europa.eu/en/news/2017/more-justice-victims-business-related-human-rights-abuses
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I. Ensuring that there is policy coherence between the work of State-based non-judicial
mechanisms and wider domestic policies and processes relevant to the respect by
business enterprises of human rights.
Policy objective 1: Domestic law regimes that are relevant to the respect by business enterprises
of human rights (“domestic law regimes”) include a range of State-based non- judicial mechanisms
with responsibilities for resolving disputes and complaints arising from adverse human rights
impacts of business activities (“State-based non-judicial mechanisms”).
1.1 Taken together, domestic law regimes (a) provide the necessary coverage with respect
to business-related human rights abuses; (b) adopt legislative, regulatory and policy
measures appropriate to the type, nature and severity of different business-related human
rights impacts; and (c) are clear as to whether, and the extent to which, they impose legal
obligations on companies.62
1.2 State-based non-judicial mechanisms are empowered to receive and resolve complaints
and/or disputes about the adverse human rights impacts of business enterprises in a manner
appropriate to the type, nature and severity of such impacts.
Policy objective 2: State-based non-judicial mechanisms established under domestic law regimes
provide an efficient, effective and realistic alternative to judicial mechanisms as a means of
resolving disputes and complaints arising from adverse human rights impacts of business activities.
2.1 Roles and responsibilities of judicial mechanisms and State-based non-judicial

mechanisms are clearly delineated under domestic law.
2.2 The procedures of judicial mechanisms provide opportunities for referral of disputes
arising from adverse human rights impacts of business enterprises to State-based non-
judicial mechanisms, as appropriate in the interests of promoting and facilitating access to
a prompt, adequate and effective remedy.63
2.3 State-based non-judicial mechanisms conform to the “effectiveness criteria” set out in
the UN Guiding Principles on Business and Human Rights.64
2.4 The mandate, scope, institutional structure and processes of State-based non-judicial
mechanisms are designed in consultation with (a) potentially affected stakeholders,
potential users of the mechanisms and their legal representatives and (b) the local judiciary,
local bar associations and other relevant regulatory and domestic law enforcement
agencies.
Policy objective 3: The types, range and coverage of State-based non-judicial mechanisms
established under domestic law regimes are appropriate to local needs, and in particular, the type,
62 See further A/HRC/32/19, Annex.

63 See further A/HRC/32/19, Annex, para 16.2.
64 See further Part III below.
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nature and severity of human rights risks posed by the activities of business enterprises within the
jurisdiction.
3.1 State-based non-judicial mechanisms are designed in such a way as to maximise their
effectiveness within the context of local legal structures and economic conditions, taking
particular account of the needs of any groups at heightened risk of vulnerability or
marginalisation.
3.2 The mandate, scope, institutional structure and processes of State-based non-judicial
mechanisms are designed in consultation with (a) affected stakeholders and (b) national
human rights institutions.
Policy objective 4: Domestic law regimes establish and maintain a range of pathways to effective
remedies which are clearly communicated to affected stakeholders.
4.1 Domestic law regimes provide, singly or in combination, for both specialised State-
based non- judicial mechanisms (i.e. focussing on specific human rights and/or specific
business sectors, as appropriate) as well as more generalised mechanisms (i.e. with
mandates spanning a range of human rights and/or business sectors, such as national human
rights institutions).
4.2 Rules and systems are in place to ensure that allegations of corporate wrongdoing
amounting to a breach of criminal or quasi-criminal (or “administrative”) law that are
brought to the attention of a State-based non-judicial mechanism are either (a) investigated
and, where there is sufficient evidence, prosecuted by the State-based non-judicial
mechanism itself or (b) referred to the appropriate law enforcement agencies, in either case
with expedited procedures mandated in cases of allegations of severe and/or irremediable
harm.
4.3 Domestic law regimes ensure that judicial mechanisms provide appropriate levels of
support and assistance with respect to the implementation and enforcement of
determinations by State- based non-judicial mechanisms, including procedures for
enforcement and collection of financial remedies awarded by State-based non-judicial
mechanisms in cases of default or non-observance by the relevant business enterprise.
4.4 Affected stakeholders are in receipt of clear information about (a) the various State-
based non-judicial mechanisms and processes available to them (b) the different cases and
circumstances in which such mechanisms and processes are available and (c) the various
ways in which decision-making by such mechanisms can be reviewed, appealed from and
enforced.
Policy objective 5: State-based non-judicial mechanisms can establish appropriate and effective
channels of communication with each other and with other regulatory agencies relevant to the
respect by business enterprises for human rights to ensure that information relating to possible
breaches of domestic law regimes by business enterprises are appropriately and speedily
communicated to the relevant enforcement agencies and/or judicial bodies.
21
Remedies
5.1 The State takes the steps necessary to ensure that its State-based non-judicial
mechanisms have effective working relationships and communication links and are able to
coordinate their activities effectively with each other, as well as other domestic bodies that
regulate the respect by business enterprises of human rights, including agencies responsible
for the regulation of labour, consumer and environmental standards and agencies
responsible for the enforcement of laws relating to bribery and corruption.
5.2 State-based non-judicial mechanisms have mandates, functions and policy space
needed to participate in joint initiatives with other State-based non-judicial mechanisms
and other regulatory agencies within their respective jurisdictions for the purposes of (a)
developing joint and/or coordinated responses to adverse human rights impacts that are
business related, (b) improving their own effectiveness, (c) avoiding duplication of effort,
(d) capacity building, (e) sharing of experiences and lessons learned and (f) improving the
speed and efficiency with which effective remedies can be delivered for adverse human
rights impacts that are business-related.
5.3 State-based non-judicial mechanisms are in receipt of clear guidance as to the

circumstances in which issues, allegations or evidence raised in the course of a complaint
or dispute (a) must and (b) should be communicated and/or referred to other enforcement
agencies and/or judicial mechanisms.
5.4 The guidance referred to in paragraph 5.3 above takes into account the need for
confidentiality in certain circumstances, and particularly with respect to the identity of
individuals (e.g. claimants, complainants or whistleblowers and their relatives) who may
be at risk of threats, harassment or reprisals. It provides for the possibility of expedited
procedures in certain circumstances, and especially in cases of allegations of severe and/or
irremediable harm.
II. Improving the effectiveness of State-based non-judicial mechanisms in cross-border

cases
Policy objective 6: State-based non-judicial mechanisms can readily and rapidly seek information,
advice and assistance and respond to requests from their counterparts in other States with respect
to the investigation and resolution of complaints and disputes arising from adverse human rights
impacts of business activities
6.1 State-based non-judicial mechanisms have mandates, functions and policy space
needed to participate in joint initiatives with other State-based non-judicial mechanisms
and other regulatory agencies in other jurisdictions for the purposes of (a) developing joint
and/or coordinated responses to cross-border cases, (b) improving their own effectiveness,
(c) avoiding duplication of effort, (d) capacity building, (e) sharing of experiences and
lessons learned and (f) improving the speed and efficiency with which effective remedies
can be delivered in cross- border cases.
22
Remedies
6.2 The State sets out a clear policy expectation that State-based non-judicial mechanisms
will be appropriately responsive to requests from the relevant agencies of other States in
cross-border cases.
6.3 The State ensures that appropriate bilateral and multilateral arrangements are in place
to enable State-based non-judicial mechanisms to request information, advice and
assistance from relevant counterparts in other States in cross-border cases.
6.4 The State ensures that its State-based non-judicial mechanisms have access to the
necessary information, support, training and resources to enable personnel to make the best
use of arrangements with other States for cooperation in cross-border cases.
6.5 The State is actively involved with relevant bilateral and multilateral initiatives aimed
at improving the ease with which and speed at which requests for information, advice and
assistance can be made and responded to including through information repositories that
provide clarity on points of contact, core process requirements and systems for updates on
outstanding requests.
6.6 State-based non-judicial mechanisms support and encourage the involvement of their
personnel in relevant bilateral and multilateral initiatives and networks aimed at (a)
facilitating contact and exchange of know-how between counterparts in other States; and
(b) promoting awareness of different opportunities and options for international
cooperation and the provision of information, advice and assistance in cross-border cases.
Policy objective 7: The State works through relevant bilateral and multilateral forums to strengthen
methods, systems and domestic law regimes relevant to cross-border cases concerning business
involvement in human rights abuses.
7.1 The State actively participates in bilateral, regional and multilateral initiatives aimed at
strengthening domestic legal responses to cross-border human rights challenges with a
business connection.
III. Supporting implementation by States of the effectiveness criteria for non- judicial
grievance mechanisms (Guiding Principle 31)
Policy objective 8: State based non-judicial mechanisms are legitimate: enabling trust from the
stakeholder groups for whose use they are intended, and being accountable for the fair conduct of
grievance processes (Guiding Principle 31(a))
8.1 The State effectively supports its State-based non-judicial mechanisms in protecting
against business related human rights abuses.
8.2 State-based non-judicial mechanisms have clear mandates and functions which are
enshrined in primary legislation.
23
Remedies
8.3 State-based non-judicial mechanisms have access to adequate resources to carry out
their respective mandates and to perform their functions effectively and in accordance with
their various policies and public commitments, including the necessary financial, staffing
and training resources, recognizing the specific challenges that may be faced by indigenous
peoples, women, national or ethnic minorities, religious and linguistic minorities, children,
persons with disabilities, and migrant workers and their families.
8.4 The State takes steps to ensure that State-based non-judicial mechanisms have
appropriate levels of independence from governmental functions in light of their respective
mandates and functions, including through independent panels to handle decisions relating
to the appointment of, and termination of employment of, key operational and management
personnel.
8.5 State-based non-judicial mechanisms have robust procedures for responding to

concerns raised about the exercise of their complaints-handling and/or dispute resolution
functions, which may, where appropriate, involve referral to an independent oversight
panel and/or government ombudsman.
8.6 State-based non-judicial mechanisms are subject to appropriate supervision by

independent oversight bodies to ensure good overall performance and that management
and decision-making processes meet applicable standards of good practice.
8.7 State-based non-judicial mechanisms have put in place robust policies and procedures
to identify, avoid and manage potential conflicts of interest, including, where appropriate,
through the separation of business education and awareness-raising functions from dispute
resolution functions and the regular rotation of senior and management personnel.
Policy objective 9: State based non-judicial mechanisms are accessible: being known to all
stakeholder groups for whose use they are intended, and providing adequate assistance for those
who may face particular barriers to access (Guiding Principle 31(b))
9.1 The State ensures that the existence of the various State-based mechanisms and their
roles, responsibilities and functions are well publicised to affected stakeholders.
9.2 Wherever possible, complaints handling and dispute resolution services are made
available to users free of charge. In cases where charging of user fees is deemed necessary
and appropriate, financial assistance is made available to users who would be otherwise
unable to access the relevant mechanism, and in particular to those people who may be at
heightened risk of vulnerability and/or marginalization.
9.3. State-based non-judicial mechanisms give adequate publicity to sources of financial

assistance that may be available to help users to defray the costs of making a complaint or
referring a dispute, including travel and accommodation costs.
9.4 Complaints and dispute resolution processes and communications are designed in such
a way as to be as user-friendly as possible and allow for representation in person, without
24
Remedies
the need for the services of legal counsel, recognizing the specific challenges that may be
faced by indigenous peoples, women, national or ethnic minorities, religious and linguistic
minorities, children, persons with disabilities, and migrant workers and their families.
9.5 Users of complaints and dispute resolution processes may access and participate in
these processes in a range of ways most convenient to them, including through on-line
forms, telephone reporting, by post or in person.
9.6 State-based non-judicial mechanisms make available, free of charge, a range of

assistance and advisory services to promote easy access by individuals and their
representatives to complaints and/or disputes resolution processes, including through on-
line resources such as downloadable pamphlets and videos, paper resources, and telephone
help-lines.
9.7 State-based non-judicial mechanisms make available, where appropriate, advisory or

“triage” services to ensure that complaints and disputes can be quickly directed to the place
where they can most quickly, efficiently and appropriately be resolved, in light of the
nature of the complaint or dispute.
9.8 State-based non-judicial mechanisms ensure that the materials, resources and advisory
services referred to in paragraphs 9.6 and 9.7 above are made available (a) in the languages
and formats needed to ensure that they are readily understandable to all potential users and
(b) in formats that meet the needs of people with disabilities, including people with
impairments to hearing, sight or mobility.
9.9 To the extent necessary to participate meaningfully in proceedings, users of State-based

non- judicial mechanisms have access to translation services at no cost.
9.10 State-based non-judicial mechanisms have put in place measures to enable access and
use of the mechanisms on an equal basis with others. This can include improving physical
and communicational accessibility to premises, adjustments in the procedures, among other
possible adjustments to ensure equal access, including (a) persons with disabilities,
including deaf persons and persons with intellectual or psychosocial impairments; (b) older
persons, among others.
9.11 State-based non-judicial mechanisms engage in appropriate physical outreach

activities to ensure the widest possible awareness of the mechanisms and its role,
responsibilities and functions among the relevant individuals, groups and communities,
including through regional offices and service centres, mobile offices and “road-shows”,
recognizing the specific challenges that may be faced by indigenous peoples, women,
national or ethnic minorities, religious and linguistic minorities, children, persons with
disabilities, and migrant workers and their families.
9.13 State-based non-judicial mechanisms have put in place robust procedures to ensure
confidentiality where the context and specific circumstances of the complaint would make
it necessary, and particularly with respect to the identity of individuals (e.g. claimants,
25
Remedies
complainants or whistleblowers and their relatives) who may be at risk of threats,

harassment or reprisals.
9.14 State-based non-judicial mechanisms have put in place appropriate safeguarding
arrangements for the protection of particularly vulnerable users and/or witnesses, such as
indigenous peoples, women, national or ethnic, religious and linguistic minorities,
children, persons with disabilities; and migrant workers and their families.
9.15 The confidentiality of private information of users or State-based non-judicial

mechanisms is protected by robust domestic law regimes on data protection and privacy.
9.16 Users of State-based non-judicial mechanisms, whistleblowers and legal

representatives are protected by law against reprisals, harassment and discrimination as a
result of their engagement with State-based non-judicial mechanisms with respect to
complaints or disputes arising from adverse human rights impacts of business activities.
Policy objective 10: State based non-judicial mechanisms are predictable: providing a clear and
known procedure with an indicative time frame for each stage, and clarity on the types of process
and outcome available and means of monitoring implementation (Guiding Principle 31(c))
10.1 State-based non-judicial mechanisms publish and make readily available easily
understandable information about various stages in the complaints handling and/or
dispute resolution processes, the expectations of the parties at each stage, and the times
frames within which key decisions will be taken and key milestones reached, including
through “what to expect” leaflets, videos and on-line resources.
10.2 State-based non-judicial mechanisms ensure that the materials, resources and advisory
services referred to in paragraph 10.1 above are made available (a) in the languages and
formats needed to ensure that they are readily understandable to all potential users and
(b) in formats that meet the needs of people with disabilities, including people with
impairments to hearing, sight or mobility.
10.3 State-based non-judicial mechanisms operate to publicly available policies and/or codes
of conduct with respect to enforcement, prosecution, information-sharing and
engagement with other regulatory and/or law enforcement bodies.
10.4 Where appropriate, and to the extent permitted by applicable laws, standards and
policies with respect to confidentiality and protection of whistleblowers, the State-based
non-judicial mechanism publishes details of past cases, decisions and determinations
with respect to complaints or disputes arising from adverse human rights impacts of
business activities.
Policy objective 11: State based non-judicial mechanisms are equitable: seeking to ensure that
aggrieved parties have reasonable access to sources of information, advice and expertise necessary
to engage in a grievance process on fair, informed and respectful terms (Guiding Principle 31(d))
26
Remedies
11.1 State-based non-judicial mechanisms observe principles of natural justice and

internationally recognised standards of procedural fairness, including by providing
interested persons (and particularly complainants, subjects of complaints and parties to
disputes) with adequate opportunities to comment on allegations or proposal for remedies
before final decisions are made.
11.2 State-based non-judicial mechanisms operate to publicly available policies and/or

codes of conduct with respect to the conduct of investigations into allegations of breaches
of criminal or quasi-criminal (“administrative”) standards.
Policy objective 12: State-based non-judicial mechanisms are transparent: keeping parties to a
grievance informed about its progress, and providing sufficient information about the mechanism’s
performance to build confidence in its effectiveness and meet any public interest at stake (Guiding
Principle 31(e))
12.1 State-based non-judicial mechanisms have put in place procedures to ensure that users
of mechanisms are appropriately informed of key developments and requirements,
including through on-line accounts, telephone help-lines, and dedicated case-workers, as
appropriate.
12.2 State-based non-judicial mechanisms are required to prepare and submit an annual
report on its activities and performance (including (a) its financial position and
management of its finances and (b) reference to key performance indicators and the
mechanism’s progress with respect to agreed performance targets) for scrutiny by
government and/or any relevant supervisory and oversight body, such reports to be made
publicly available.
12.3 Subject to its obligations with respect to confidentiality, the State-based non-judicial
mechanism makes periodic disclosures of the complaints and/or disputes which have been
referred to it, the allegations made and the determinations made in respect of those
complaints and/or disputes, in either aggregated or disaggregated formats, as appropriate
in light of the nature and aims of the domestic law regime in question.
12.4 Information with respect to the activities and performance of State-based non-judicial
mechanisms may be accessed by members of the public pursuant to domestic regimes on
freedom of governmental information.
Policy objective 13: State-based non-judicial mechanisms are rights-compatible: ensuring that
outcomes and remedies accord with internationally recognized human rights (Guiding Principle
31(f))
13.1 State-based non-judicial mechanisms have the authority and ability, in law and in
practice, to contribute to the delivery of prompt, adequate and effective remedies to people
whose human rights have been adversely affected by business activities either (a) on their
27
Remedies
own initiative or (b) through robust arrangements for cooperation with other regulatory
and/or law enforcement bodies and/or judicial mechanisms.
13.2 State-based non-judicial mechanisms have the authority and ability, in law and in
practice, to contribute to the delivery of a range of remedies meeting the standards
described in paragraph 13.1 above which may include, depending on the specific case,
financial penalties and/or non- financial remedies, such as orders for restitution, measures
to assist with the rehabilitation of victims and/or resources, satisfaction (e.g. public
apologies) and guarantees of non-repetition (e.g. cancellation of operating licenses,
mandated compliance programmes, education and training).
13.3 In circumstances where State-based non-judicial mechanisms are empowered to

award remedies on their own initiative, such mechanisms operate to policies designed to
ensure that such remedies (a) are proportional to the gravity of the abuse and the harm
suffered; (b) reflect the degree of culpability of the relevant company (e.g. as demonstrated
by whether the company exercised appropriate human rights due diligence, the strength
and effectiveness of the company’s legal compliance efforts, any history of similar
conduct, whether the company had responded adequately to warnings and other relevant
factors); (c) are designed in such a way as to minimize the risks of repetition or continuation
of the abuse and/or harm; (d) are sufficiently dissuasive to be a credible deterrent to that
company, and others, from engaging in the prohibited behaviour; and (e) take into account
gender issues and the particular needs of individuals or groups at heightened risk of
vulnerability or marginalization.
13.4 State-based non-judicial mechanism ensure that, to the extent possible, victims are
appropriately consulted: (a) with respect to the design and implementation of sanctions and
other remedies; (b) with respect to any decision to enter into a deferred enforcement
agreement, and the terms of any such agreement; and (c) with respect to the terms of any
settlement.
13.5 The consultation referred to in paragraph 13.4 above takes into account gender issues
and the particular needs of individuals or groups at heightened risk of vulnerability or
marginalization.
13.6 State-based non-judicial mechanisms take steps to ensure that members of its staff are
familiar with the needs of the different user groups for which they are intended, especially
with respect to the needs of individuals or groups at heightened risk of vulnerability or
marginalization.
13.7 State-based non-judicial mechanisms give appropriate prioritisation to the needs of

individuals or groups who appear to be particularly vulnerable in the circumstances and/or
who are deemed to be particularly at risk of exploitation or serious physical or emotional
harm.
13.8 State-based non-judicial mechanisms monitor the implementation of sanctions and

other remedies they have awarded or imposed and ensure that there is an effective
28
Remedies
mechanism by which interested persons can report and/or raise a complaint regarding
and/or seek remedial action with respect to any non-implementation of such sanctions
and/or other remedies.
Policy objective 14: State-based non-judicial mechanisms are a source of continuous learning:
drawing on relevant measures to identify lessons for improving the mechanism and preventing
future grievances and harms (Guiding Principle 31(g))
14.1 To the extent possible, State-based non-judicial mechanisms have among their
respective mandates and functions the responsibility to observe, report upon and advise
government on legislative, policy and/or structural matters (including market-related
issues) relating to business activity which have implications (both positive and negative)
for the protection and fulfilment of human rights both within the relevant jurisdiction and
in a cross-border context.
14.2 States keep under review the scope, mandates, types, functions, responsibilities and
performance of State-based non-judicial mechanisms relevant to business respect for
human rights, and draws from their work in the development of law and policy relevant to
their duty to protect human rights as described in the UN Guiding Principles on Business
and Human Rights, including through the development and implementation of their
National Action Plans.65
65Access to remedy for business-related human rights abuses Office of the UN High Commissioner for Human
Rights Accountability and Remedy Project II, Consultation draft of policy objectives, pp. 4-12 as it can be
accessed at:
https://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/ARP_II_Consultation.pdf (last
accessed on: 27 May 2019)
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Business Related Human Rights Abuses and Piercing the Veil of Corporate Fiction: Improving Accountability and Access to

European-based multinational corporations can cause or be complicit in human rights abuses in

2 Resolution A/HRC/26/9, ‘Elaboration of an international legally binding instrument on transnational

April 2018, p. 10.

 Third Pillar of the United Nations Guiding Principles

14 Office of the High Commissioner for Human Rights (2018), p. 10

 Kinds of Business Human Rights Abuses28

The issues are not ranked in order of importance.

2. Overcoming Barriers Preventing Access to Effective Remedies for Corporate Related

4. Strengthening Trade Union Movements in an Era of Growing Casualisation of Work

8. Combating Sexual Violence in the Workplace

In advance of finalizing the SDGs in September 2015, and in an effort to contribute to

10. Strengthening State Approaches to Implementing the UN Guiding Principles on Business

 Barriers to Access to Justice - Legal Remedies

29 Amnesty International, ‘Injustice Incorporated’, op. cit.

of businessrelated human rights abuse' op. cit., p. 9.

of businessrelated human rights abuse' /HRC/32/19, 10 May 2016, p. 9

Fact Sheet No. 9, 2013.

land grabbing, 29 May 2018, 2017/2206(INI).

 Practical and procedural barriers to accessing judicial remedy

Difficulties in securing legal representation. The aforementioned limited availability of legal

48 Skinner, McCorquodale and De Schutter, ‘The Third Pillar’, op. cit., p. 9.

op. cit., p. 84.

Providing alternatives through non-judicial remedies: Non-judicial mechanisms can be more

2.1 Roles and responsibilities of judicial mechanisms and State-based non-judicial

62 See further A/HRC/32/19, Annex.

5.3 State-based non-judicial mechanisms are in receipt of clear guidance as to the

II. Improving the effectiveness of State-based non-judicial mechanisms in cross-border

8.5 State-based non-judicial mechanisms have robust procedures for responding to

8.6 State-based non-judicial mechanisms are subject to appropriate supervision by

9.3. State-based non-judicial mechanisms give adequate publicity to sources of financial

9.6 State-based non-judicial mechanisms make available, free of charge, a range of

9.7 State-based non-judicial mechanisms make available, where appropriate, advisory or

9.9 To the extent necessary to participate meaningfully in proceedings, users of State-based

9.11 State-based non-judicial mechanisms engage in appropriate physical outreach

complainants or whistleblowers and their relatives) who may be at risk of threats,

9.15 The confidentiality of private information of users or State-based non-judicial

9.16 Users of State-based non-judicial mechanisms, whistleblowers and legal

11.1 State-based non-judicial mechanisms observe principles of natural justice and

11.2 State-based non-judicial mechanisms operate to publicly available policies and/or

13.3 In circumstances where State-based non-judicial mechanisms are empowered to

13.7 State-based non-judicial mechanisms give appropriate prioritisation to the needs of

13.8 State-based non-judicial mechanisms monitor the implementation of sanctions and

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