Justice bubbles for the privileged: A critique of the Investor-State Dispute Settlement Proposals for the EU's Investment Agreements

This article criticises the judicialisation of investor state dispute settlement in the direction envisaged by the EU’s Investment Court System because it prioritises institutions of justice for foreign investors over the improvement of local institutions that could provide justice for members across society, including foreign investors

Human Rights Disclosure and Due Diligence Laws: The Role of Regulatory Oversight in Ensuring Corporate Accountability

In response to intense civil society pressure and the increasing public awareness of the appalling human rights impacts of businesses including working conditions amounting to slavery and forced labor, several governments have committed themselves to taking action to prevent human rights abuses by businesses and eradicate modern slavery in global supply chains. While the majority of the legislative movement in this area is focused on increasing transparency through corporate disclosures on human rights, we are also seeing a gradual move towards legislation introducing mandatory human rights due diligence (HRDD). HRDD laws can clearly address some of the design shortcomings of transparency focused laws. Yet, the question of robust implementation remains underexplored for both transparency and HRDD laws. In this paper, we focus on the oversight and enforcement features of both human rights reporting and due diligence laws as among the missing links to achieving the accountability objectives envisaged by such legislation. Based on an analysis of the most recent pieces of legislation focusing on transparency and/or HRDD, we observe and critique that the state has almost completely withdrawn itself from the oversight and enforcement roles and assigned these crucial accountability functions solely to consumers, civil society, and investors. Without a regulatory mechanism to ensure quality of human rights disclosures and due diligence processes and impose sanctions for failing to comply with the laws, not only may the disclosures and processes be inadequate, but there is a danger that misleading disclosures and flawed processes may mask harmful impacts and be detrimental to any hopes of improving rights of workers and communities in the global supply chain. We offer a new perspective on a more effective approach to oversight and enforcement in which the state should function as a key actor through which consumers, civil society, and investors can hold businesses accountable

Supply chain liability: pushing the boundaries of the common law?

On 29 August 2016, in a claim by Pakistani survivors and legal heirs against German retailer KiK for injuries and deaths during a fire at a factory supplying jeans in Karachi, German judges accepted jurisdiction and granted legal aid to the Pakistani claimants to cover the legal fees. The case pending before the German court thus poses the question of supply chain liability. Taking the lawsuit by the Pakistani plaintiffs against KiK in Germany as a case study, this article provides an analysis of the available legal grounds for such liability. Economic changes have ushered in linkages between purchasers and suppliers that call for strong principles of liability – principles that are already embedded in the law but which need fresh articulation and application. English courts have only recently recognised that under certain circumstances, liability might attach to a parent company under the tort of negligence for damage to third parties ostensibly caused by its subsidiary. The KiK case is testing the extension of such liability to certain supply chain relationships. Beyond that, the case is also testing the application of the rules on non-delegable duties and vicarious liability in the supply chain context. Even if the court disagrees with the claimants’ position, the novel arguments advanced in this case are likely to be the starting point for an important debate about the proper fit between traditional tort law and the fast changing commercial and employment relationships of the 21st century

The Nationality of Corporate Investors under International Investment Law

This monograph offers a detailed and distinctive analysis of corporate nationality under international investment law, covering the ICSID Convention and the investment treaty framework. It takes the reader back to the basics, threading through the concepts of jurisdiction, nationality, and corporate personality to give a clear context to the discussion of corporate nationality under international investment law, at a time when international investment is dominated by multinational business enterprises operating in a globalised economy. The book examines different understandings of corporate personality and nationality under a selection of jurisdictions and public international law. It also offers an in-depth analysis of approaches found in ICSID arbitral awards and in investment treaty practice, distilling the problematic areas and discussing the impacts of the areas of concern. It evaluates the techniques developed to address problems and puts forward suggestions for effective and balanced solutions to the questions of corporate nationality and personal scope of investment protection

Human Rights Disclosure and Due Diligence Laws: The Role of Regulatory Oversight in Ensuring Corporate Accountability

The proliferation of human rights disclosure and due diligence laws around the globe is a welcome development in the area of business and human rights. Corresponding improvement in conditions for workers and communities in global supply chains whose human rights are impacted by businesses has not materialized, however. In this Article, we focus on the oversight and enforcement features of human rights disclosure and due diligence laws as one of the missing links to achieving the accountability objectives envisaged by such legislation. Drawing on our analysis of key legislative developments, we observe and critique that the state has almost completely withdrawn itself from the oversight and enforcement roles and assigned these crucial accountability functions solely to consumers, civil society, and investors. Without a regulatory mechanism to ensure quality of human rights disclosures and due diligence processes and to impose sanctions for failing to comply with the laws, not only may the disclosures and processes be inadequate, but there is a danger that misleading disclosures and flawed processes may mask harmful impacts and be detrimental to any hopes of vindicating the rights of workers and communities in global supply chains. We offer a new perspective on a more effective approach to oversight and enforcement in which the state should function as a key actor through which consumers, civil society, and investors can hold businesses accountable