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This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses.

This collection comprises 20 national reports from jurisdictions in Europe, North America, Latin America and Asia, addressing the private international law aspects of corporate social responsibility. They provide an overview of the legal differences between geographical areas, and offer numerous examples of how states and their courts have resolved disputes involving private international law elements. The book draws two preliminary conclusions: that there is a need for a better understanding of the role that private international law plays in cases involving transnational elements, in order to better design transnational solutions to the issues posed by economic globalisation; and that the treaty negotiations on business and human rights in the United Nations could offer a forum to clarify and unify several of the elements that underpin transnational disputes involving corporate human rights abuses, which could also help to identify and bridge the existing gaps that limit effective access to remedy. Adopting a comparative approach, this book appeals to academics, lawyers, judges and legislators concerned with the issue of access to remedy and reparation for corporate abuses under the prism of private international law.

Inhaltsverzeichnis

Frontmatter

General Report

Frontmatter

Questions de droit international privé de la responsabilité sociétale des entreprises : Rapport général

Abstract
The General Report builds on the national reports and some independent research by the General Rapporteur. It aims at guiding the reader through the complexity of jurisdiction and applicable law rules for disputes arising of violations of corporate social responsibility by economic actors.
Catherine Kessedjian

National Reports

Frontmatter

Argentina

Abstract
Following the questionnaire proposed by the general reporter, this chapter offers an overview of contracts law, consumers regulations, environmental dispositions, labour law and corporate law from a Private International Law perspective, as they regulate the activities of corporations and their duties regarding corporate social responsibility and Human rights law. In particular, the Argentinean report stresses its insertion in the Organization of American States system of conventions and other regional dispositions such as Mercosur, as well as the Private International Law sections included in domestic law. The national system presents strong links with Human rights at a constitutional level, which generates profound and direct impacts within private law regulations and contribute to its interpretative richness and performative capacity. In that sense, the report also analyses some aspects of the recently reformed Civil and Commercial Code that took into consideration the solutions offered by Human Rights instruments with constitutional standing and by international treaties with supralegal status, as a manifestation of the interrelation of public and private branches of law, based on the constitutionalization process of private law.
María Susana Najurieta, Florencia S. Wegher Osci

Belgium

Abstract
All questions contained in the questionnaire on ‘Private International Law for Corporate Social Responsibility’ have been answered in this report on Belgian law. A comparison with other countries is not available here. Nevertheless a brief comparative insight tells us that Belgium is neither leader nor laggard in this area. Belgium is no pioneer in matters concerning corporate social responsibility (hereafter ‘CSR’) (responsabilité sociétale de l’entreprise, maatschappelijk verantwoord ondernemen). Yet the general laws, both substantive and procedural, seem to be flexible enough to deal with CSR cases. Our focus is de lega lata, not de lege feranda. No European regulations have been included here in full since they are available online in many different languages. The Belgian Act on Private International Law can also be found online.
Siel Demeyere, Geert Van Calster

Brazil

Abstract
The Corporate Social Responsibility (CSR) in Brazil is foreseen in soft laws and it is still applied on a voluntary basis. Brazilian companies are beginning the process of improving compliance sectors. Although Brazil is still improving its systems of Corporate Social Responsibility, there is a strong business trend towards the creation of compliance sectors and the structuring of sectors involving environmental and labor issues. The standards of ISO 26000, concerning Corporate Social Responsibility, were adopted internally on 11/01/2010 through the rule ABNT NBR 16001. Private companies are free to adhere to the ISO standards, and may require certification under the NBR 16001. In addition, the concept embodied by the ISO 26000, the OECD Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights can be applied, and has already been applied by companies based in Brazil. However, it is believed that Brazil does not have enough parameters to establish a federal legal definition of Corporate Social Responsibility, which is good, since constructing such parameters through laws may limit the evolution of this concept. The absence of a definition in law does not implicate in the absence of programs towards CSR. As an example, Brazil has a Social Responsibility program bonded to the concepts of ISO 26000, and there are internal corporate codes of conduct that, together with environmental, consumer, criminal and labor mandatory laws, form a web of Corporate Social Responsibility. The Anti-corruption Law also encourages the creation of compliance sectors as it imposes restrictions on business practices that violate national or foreign public assets, against the principles of public administration or against the international commitments undertaken by Brazil. In summary, what has been noted is that corporate codes of conduct and the international market and consumer culture implicate in a profound change in the attitude of companies towards social responsibility, ensuring that not always should financial risk prevail over social risks.
Marilda Rosado de Sá Ribeiro

Canada

Abstract
The principles of corporate social responsibility (CSR) have not been embodied in legislation in Canada. Rather, in recent years the federal government has promoted best practices in CSR. These efforts have focused particularly on mining and other extractive industries, because Canadian companies in this sector conduct, through subsidiary entities, very extensive operations in other countries. Law-making activity in the area of CSR and private international law has been most intense, not in the federal or provincial legislatures, but in the courts. A number of important cases have involved lawsuits brought in Canada against Canadian companies, in which foreign claimants seek to recover compensation for environmental and social harm caused by the operations of these companies’ subsidiaries abroad. The jurisdiction of Canadian courts to hear such cases has been upheld, but no case has yet progressed to a decision on liability. As well, courts have considered questions of choice of law in relation to failures to uphold CSR principle in foreign operations. They have also dealt with the enforcement of judgments, granted by a foreign court against a foreign company, against the assets of a Canadian subsidiary of the foreign judgment debtor. The challenges faced by the claimants in this body of cross-border litigation have to do both with Canadian private international law and with the Canadian rules about the legal responsibility of shareholder corporations for wrongs committed by corporations that they wholly or partly own.
Joost Blom

Chile

Abstract
This chapter revises the regulation of CSR in Chile, looking into law, regulation, public policies and case-law that would correspond to or come close to implementing the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. CSR itself is not incorporated in laws in any form whatsoever. Public policies, however, take up international CSR concepts as defined in this book, usually by reference to human rights instruments. Such is the case for the National Action Plan on Human Rights and Business, and Chapter 8 of the National Human Rights Plan, both adopted in 2017. Interestingly, however, case-law of civil courts can be read as allowing for extraterritorial claims, albeit with limited success. Consumer law provides for further elements of protection, including the environmentally aware consumer.
Judith Schönsteiner, Juan Ignacio Contardo

China

Abstract
The idea of Corporate Social Responsibility (CSR) was not conceptualized when the first Chinese Company Law (CCL) was enacted in the 1990s. But CSR was one of the many issues considered in the process of modernizing company law and it has been given an explicit legal recognition by Chinese Company Law since 2006. However, there is no clear and specific definition for CSR in the Chinese legal system. It is also a controversial concept among the Chinese academia. Currently, there is no obvious sign that Chinese government officials would apply the concept embodied in international instruments such as ISO 26000, OECD Guidelines for Multinational Enterprises (OECD Guidelines) and the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles). However, the number of CSR reports published in China has grown steadily in the past decade. International initiatives on CSR are increasingly incorporated into local initiatives in China. A persuasive online survey indicates that respondents are broadly confident about the future development of CSR in China, with 84% believing that the level of CSR knowledge, implementation and communication will grow in the next decade. Although the government will remain the key driver of CSR development, the role of the general public will continue to grow in importance. As far as Private International Law (PIL) issues of CSR are concerned, generally no distinct rules have been developed in China yet.
Guangjian Tu, Si Chen

Colombia

Abstract
In practice, corporate activities may have detrimental impacts on the enjoyment of human rights, be them rights of employees, members of indigenous communities, or others. Accordingly, some developments have taken place in the international level in order to address them through the protect, respect and remedy pillars of the business and human rights framework. Nevertheless, much of the concrete protection is to take place at the domestic legal levels, and often through ordinary legal tools and doctrines. This Chapter explores how the Colombian domestic legal system provides certain mechanisms in both private—including private international law—and public law provisions, such as torts law or constitutional developments on corporate due diligence, respectively, among others.
William Fernando Martínez Luna, Nicolás Carrillo Santarelli

Czech Republic

Abstract
The National Report provides a general overview of the concept of Corporate Social Responsibility in the Czech Republic and its reflection in rules pertaining to company law, contract law, tort law and private international law. The core issues cover the applicability of CSR’s rules as part of a governing law and analysis of rules determining jurisdiction of a relevant forum for deciding disputes relating to CSR’s values. The awareness of the international CSR instruments is rather low in the Czech Republic amongst both businesses and the general public. The recent initiatives, including the National Action Plan and the National Action Plan on Business and Human Rights, seem essential for further development and achieving a more systematic and coordinated approach to these issues at the domestic level. Companies play an essential role in economic development and their activities shall be respectful of human rights, irrespective of where their operations take place. Norms of private international law are broad as regards their scope of application but have inherent limits to enable disputes regarding breaches committed by overseas operations to be litigated in the Czech courts or the courts of the EU Member States.
Monika Feigerlová, Monika Pauknerová

France

Abstract
The French Legislature recently adopted several reforms that integrate certain dimensions of CSR. For example, the Law of 22 May 2019 modified article 1833 of the Civil Code to include social and environmental issues in corporate activity, in order to define how it should address them. Also, the Law nº 2017-399 on the duty of vigilance of parent companies of 2017 establishes the obligation for larger companies to set up a vigilance plan, allowing them to identify and prevent potential risks to human rights and the environment. The implementation of these instruments remains uncertain, especially considering that several categories of private international law are concerned.
Case law derives mostly from common law or EU law. In relation to substantive law, the Erika and Distilbène cases deserve to be analyzed. Concerning private international law, case law addressing co-employment (the Molex case), the international ordre public (a case of domestic slavery), or even a denial of justice (Comilog case) show specifically the difficulties to bring certain parties before a French jurisdiction.
Anne Danis-Fatôme, Katrin Deckert, Marie Laure Niboyet, Laurence Sinopoli

Germany

Abstract
This chapter provides an overview on how Private International Law (PIL) may be made useful for the purposes of Corporate Social Responsibility (CSR) under German Law.
After briefly glancing at the institutional framework of CSR in Germany (“Definition and Sources”), we analyse which rules of the substantive law may be used to protect CSR considerations (“Characterisation”). To this end, we take a closer look at company law, contract law and the law of tort. Within the company law, extending the duty of legality (Legalitätspflicht), piercing the corporate veil (Durchgriffshaftung) or using the newly introduced sections 289b and 289c of the German Commercial Code (HGB) may be options for enforcing CSR-rules. It would, however, be preferable to recognise a duty of care of the parent company within the law of tort, i.e. recognise its tortious responsibility across the value chain.
We summarise alternative methods of dispute resolution within CSR cases (“Alternative methods of dispute resolution”). The subsequent chapters evaluate under which circumstances German courts will have jurisdiction to decide CSR cases (“Jurisdiction”) as well as which law will be applicable in relation to company structure (lex societatis), contract law and the law of tort (“Applicable law”). Within the law of tort, we suggest that victims of human rights violations should be able to choose the law applicable to their case under the Rome II regulation. In the final chapter, we outline the requirements for recognising and enforcing foreign judgments (“Recognition and enforcement of judgments”).
Marc-Philippe Weller, Leonhard Hübner, Luca Kaller

Italy

Abstract
Corporate Social Responsibility (CSR) is a notion known to the Italian legal system. More precisely, in light of Italian law, we can distinguish between CSR strictu sensu (as generally conceived of as based on voluntary commitments) and the corporate accountability to respect binding obligations recognized at law (especially on the basis of the legal provisions of Italian company, contract and tort law) concerning, for instance, the protection of human and labor rights and the environment (CSR latu sensu). Bearing this distinction in mind, the present report will focus on CSR from the perspective of Italian private international law, addressing CSR strictu and latu sensu.
Angelica Bonfanti

Japan

Abstract
Japan has been a member of the OECD, and set up a National Contact Point in 2008. Japan has also taken actions under the 2011 Guiding Principles. Japan stated in 2016 that it planned to formulate its National Action Plan in the coming years, and had started preliminary discussion among relevant ministries.
Under the Japanese Company Law, directors assume the duty of care of a good manager acting in a loyal manner in compliance with laws and regulations. In addition, a director shall disclose material facts with respect relevant transactions at a shareholders meeting and obtain approval of the shareholders meeting in certain cases. As regards corporate governance, a new rule on the disclosure of reasons not to have an outside director was introduced in 2014. There is also a rule relating to anti-corruption in the Unfair Competition Prevention Act. Furthermore, a third party can take action on the ground of tort against a company for breach of a rule of CSR. However, there have been few cases in which the court touched on the legal nature of a rule of CSR.
There have been no cases so far on breaches of CSR in which a Japanese court decided on international adjudicative jurisdiction or in which it allowed the application of ethical rules instead of, or as a complement to, the applicable law. It remains to be seen how cross-border civil disputes with regard to CSR is dealt with under the Japanese conflict of laws.
Dai Yokomizo

Kazakhstan

Abstract
This report provides an overview on private international law rules of the Republic of Kazakhstan bearing on the issue of corporate social responsibility (SCR). It sets forth the requirements on observance certain rights and freedoms by, among other, corporate actors subject to Kazakhstan’s jurisdiction. It further defines the concept of SCR as understood by the industry in Kazakhstan and describes actions taken by Kazakhstan as a Member State of the United Nations. It draws upon the rules pertaining to the law of contract, torts, company law, and state mandatory public policy to complete characterization of SCR. Finally, it sets forth judicial and enforcement jurisdiction of relevant Kazakhstan’s courts.
Milana Karayanidi, Steven Comerford

Mexico

Abstract
Corporate social responsibility is not understood as a legal concept in Mexico; nevertheless, the practice of CSR is expanded in the private sector, especially understood as a corporate contribution for the betterment of society. A different focus that has started to appear recently in the country has been that of business and human rights, which involves labour and environmental aspects, and which is gradually consolidating into the public debate. However, legal and judicial practice shows that links between CSR and private international law (or business and human rights and private international law) are increasingly appearing in Mexico. In addition, the Mexican legal framework foresees interesting aspects that would be useful to address transnational judicial disputes, including in relation to choice of forum and choice of law. This chapter provides a glimpse into the legal framework that regulates these elements in Mexico, as well as examples of case law that have recently addressed business and human rights, including disputes with a transnational perspective.
Humberto Cantú Rivera

The Netherlands

Abstract
In the Netherlands, there are several interesting developments when it comes to the PIL-aspects of CSR. First and foremost, Dutch courts have over the past few years been confronted with various cases in which Dutch companies (and their foreign subsidiaries) have been held to account for irresponsible business conduct in global value chains using non-contractual liability law. In most, issues relating to jurisdiction and applicable law have played a crucial role. Furthermore, Dutch companies increasingly rely on contractual mechanisms to implement supplier codes of conduct with a view to ensuring UNGP and OECD Guidelines compliant behavior throughout their supply chains. However, it should be noted that this development has not yet led to legal disputes generating case law about the scope and interpretation of these contractual obligations and/or their PIL-aspects. This is also true for the existing Dutch rules on company law, which as of yet contain few specific CSR-related obligations other than a number of reporting obligations for certain Dutch companies with respect to non-financial performance indicators like environmental, personnel and (in some cases) human rights issues. As far as alternative dispute resolution is concerned, it may be noted that the Dutch NCP is relatively active when it comes to resolving specific instances and has recently dealt with several interesting cases. Furthermore, the Dutch multi-stakeholder Agreement on Responsible Business Conduct in the Textile Sector includes an independent and binding dispute and complaint mechanism where third parties may file complaints against adhering companies on non-compliance with the agreement.
Liesbeth F. H. Enneking, Martijn W. Scheltema

Portugal

Abstract
This paper deals with the interplay between Corporate Social Responsibility (CSR) and Private International Law in the Portuguese legal order. While there is no general legal definition of CSR in the Portuguese law, there are explicit allusions to the concept by the legislator, most importantly in the framework of the transposition to Portuguese law, through Decree-Law 89/2017, of 28 July 2017, of the Directive 2014/95/EU, requiring larger companies to include in their management report “a non-financial statement”, which led to the addition of Articles 66-B (non-financial statement) and 508-G (non-financial consolidated statement) to the Portuguese Companies Code of 1986.
The general view is that even though the trend may be a growth of importance of CSR as a legal institution in itself, the standards of behaviour applicable to enterprises have traditionally been mostly defined by law, and not by soft law instruments or self-regulation. The rise of CSR seems, in part, to be a result of globalisation and the triumph of a liberal, less intrusive State, with more “legal empty spaces” to be filled out by soft law. While there is no case law deciding the issue, despite some passing references to CSR by Portuguese higher courts, it is submitted that there is a possibility for them to verify whether applicable law is in conformity with mandatory rules of international law, to the extent those rules may be invoked in the context of ordre public, and the result at stake is deemed unacceptable.
Rui Pereira Dias, Inês Serrano de Matos, Mafalda de Sá

Switzerland

Abstract
The report presents and discusses norms of Swiss law ensuring access to remedy for human rights and environmental harm that a company located in Switzerland may cause or contribute to cause through a foreign subsidiary or supplier abroad. In addition to questions of jurisdiction and applicable law in transnational matters, the report analyses current developments on parent company liability in Swiss private law. In particular, it presents the constitutional Responsible Business Initiative and its parliamentary counter-proposal. Both aim at implementing the United Nations Guiding Principles on Business and Human Rights. They suggest introducing a legal due diligence obligation regarding human rights and the environment for companies located in Switzerland making them applicable in cross-border cases as overriding mandatory provision. This report presents current discussions in Switzerland on the scope of corporate liability within a corporate group and along the supply chain in transnational matters.
Nicolas Bueno, Andrea Bonomi

Turkey

Abstract
Turkey’s laws nor its case law provides a direct and explicit definition of Corporate Social Responsibility (CSR). Nevertheless, it is possible to piece together a notion of CSR through Turkey’s domestic laws, including international conventions to which Turkey is a party. Besides, so long as the CSR claims can be grounded on domestic legislation such claims can be heard by competent Turkish courts or arbitral tribunals. This article, initially examines a definition of CSR under Turkish law in the light of the Corporate Governance Principles set forth by Turkish Capital Market Boards, OECD Turkey, UN Guiding Principles and ISO 26000 Principles. Then, it scans Turkish legal sources including the Turkish constitution, international conventions, Turkish commercial law, law of obligations, labor law, criminal law as well as Turkish private international law through the lens of CSR to examine the probable legal grounds for claims on human rights liabilities of Turkish companies.
Zeynep Derya Tarman

United Kingdom

Abstract
Reflecting the EU approach, the United Kingdom defines CSR as voluntary but has increasingly worked to integrate social and environmental concerns into its business-focused law and policy. As a member of the OECD, the UK has actively promoted the OECD Guidelines, the UN Guiding Principles on Business and Human Rights and adheres to ISO standards. In parallel, the UK National Contact Point has seen a rise in accepted complaints against businesses and UK courts are more attuned to the complex relationship between corporate action and social responsibility. While the devolved nature of UK business law results in slightly different emphasis on corporate responsibilities across the devolved nations, both statutory and common law duties work together to ensure increased recognition of CSR. Notably, the recent landmark decision in England in Vedanta Resources Plc v Lungowe marked a tide-change on issues of jurisdiction for UK companies’ liabilities overseas. This chapter examines the underpinnings and possibilities of future reinforcement of CSR in cross-border cases in the UK.
Kasey McCall-Smith, Verónica Ruiz Abou-Nigm

Vietnam

Abstract
This study aims to provide an overview of the legal situation relating to private international law issues of corporate social responsibility (CSR) in Vietnam. It highlights the originality of Vietnam’s legal system, which is in transition from the concentrated economy to the market economy. In Vietnam, CSR is governed by different texts that are sometimes contradictory, which makes access to the law difficult and its application perilous. The study will show the difficulties in determining the international jurisdiction of the Vietnamese judge and the law applicable to CSR litigation involving a foreign element.
Chien Quoc Ngo, Hien Thi Tran

Backmatter

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