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Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World
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Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World

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Presentation held at the University of the Witwatersrand, Johannesburg, conference "The challenges of globalisation for constitutional and corporate governance" …

Presentation held at the University of the Witwatersrand, Johannesburg, conference "The challenges of globalisation for constitutional and corporate governance"
14-16 October 2010

Published in: Business
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  • 1. Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised WorldR. Grabosch, ECCHR<br />The challenges of globalisation for constitutional and corporate governance<br />14-16 October 2010, University of the Witwatersrand, Johannesburg<br />
  • 2. Links<br />Inappropriate payment in the<br /> course of manufacturing<br />Lidl<br /> Forced <br /> displacement of <br /> local, indigenous<br /> communities in order to make space for infrastructure<br />Lahmeyer Int. Merowe dam<br /> Close <br /> relationship <br /> with an<br /> oppressive <br /> government <br /> or regime<br />in re South African apartheid<br />Threats to life and <br /> physical integrity by<br /> security forces<br />ThyssenKrupp CompanhiaSiderurgicaAtlantico<br />
  • 3. Legal responses<br />Criminal liability<br />… of the managers<br />… of the corporation as such<br />Civil liability<br />Law of unfair competition & consumer protection*<br />Consequences at economic law*<br />*not discussed in this presentation<br />
  • 4. Criminal liability<br />Prosecution at the ICC<br />Personal: any natural person who “contributes to the commission or attempted commission of [a] crime by a group of persons acting with a common purpose”(Art 25 Rome Statute)<br />Subject matter: serious violations of human rights: ►genocide; ►crimes against humanity (murder, torture, enslavement, deportation, imprisonment, racial discrimination, apartheid); ►war crimes<br />Territorial: 111 member states<br />Limited capacity<br />?<br />World Court for Business and Human Rights?<br />Civil liability<br />[Law of unfair competition & consumer protection]<br />[Consequences at economic law] <br />Criminal liability<br />
  • 5. Criminal liability<br /> UK, CH, ...<br />Jurisdiction►nationality of perpetrator or victim; ►place of incriminated action; ►universal jurisdiction;Obstacle: reluctance due to comity and complexity<br />Intent or negligence of specific individual must be provenObstacle: access to evidence re subjective element can be nearly impossible (complex decision-making process; long distance; individuals involved can refuse to testify)<br />Advantages (respective litigation): public investigation; no fees<br />Recent case: Lahmeyer Int. (Merowe)<br />Prosecution at the domestic level<br />
  • 6. Civil liability<br />Access to courts<br />Access to courts<br />Applicable law<br />Applying the law<br />Criminal liability<br />Jurisdiction of US courts<br />1789 Alien Tort Claims Act: Extraterritorial jurisdiction<br />(Sosa, but: Kiobel)<br />Home state jurisdiction<br />EU: Art 2 Brussels-I Regulation,<br />no exception of forum non conveniens (Owusu v Jackson)<br />Civil liability<br />[Law of unfair competition & consumer protection]<br />Within EU generally no class actions, discovery proceedings, punitive damages, jury trial<br />Recognition & enforcement of discovery order / final judgment in the corporations home state?<br />[Consequences at economic law] <br />Costs of the dispute-> legal aid?<br />
  • 7. Civil liability<br />Access to courts<br />Applicable law<br />Applicable law<br />Applying the law<br />alternative: Piercing the corporate veil<br />►Company law of the subsidiary<br />claim for damages<br />EU: Regulation Rome II<br /> manager duties;<br /> attribution of conduct, knowledge, fault<br />rules of safety and conduct<br />limitation, prescription<br />prerequisites<br />of the claim<br />overriding mandatory provisions of the forum state: <br />►rules of due diligence? ►rules of safeguarding of traffic ?<br />Law at the place of conduct<br />Law at the place of registration of defendant company<br />Law at the place of injury<br />
  • 8. Civil liability<br />Access to courts<br />Applicable law<br />Applying the law<br />Applying the law<br />The foreign law -> (foreign) expert opinions<br />Tort laws were not designed with global business context in mind <br />How to specify prerequisites as ►causation ►due diligence <br />►foreseeability ►proximity ►reasonable person ?<br />-> Utilisation of int. codes of conduct, int. human rights law?<br />Problem of piercing the corporate veil-> company law of the country in which the subsidiary is registered<br />Access to evidence<br />-> company register<br />-> whistleblowers<br />-> civil society communication with company before/during violation<br />-> claims for disclosure of information<br />
  • 9. Thank you for your attention.<br /> For questions & comments please contact robert.grabosch@gmail.com. <br /> Visit the European Center for Constitutional and Human Rights at http://ecchr.eu.<br />

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