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International Regulatory Enforcement

The EU Human Rights Due Diligence Legislative Initiative and the Business and Human Rights Treaty
Earlier this year, the Commissioner for Justice of the European Union announced that next year the Commission will present a legislative initiative compelling companies to conduct human rights due diligence throughout their operations and supply chains, with accompanying enforcement and civil liability provisions. Because the jurisdictional breadth of the initiative is likely to be expansive, including companies doing business in the EU regardless of where they are domiciled, the impact will have global repercussions. As we have written previously, an EU mandatory human rights due diligence requirement – at least as it appears to be contemplated - is likely to have vast implications, catapulting global human rights due diligence to a business imperative akin to anti-corruption diligence.
How a Biden Administration May Approach Business and Human Rights
With election season heating up, we increasingly are asked for predictions regarding a potential Biden Administration’s approach to ESG (Environmental, Social, and Governance) and business and human rights. To some extent, that seems fairly clear. Former Vice President Biden has stated strongly that he sees climate change as an accelerating threat, and has released a detailed plan that sets a target of achieving net zero emissions by 2050. The campaign also has pledged to address diversity and inclusion, and when the former Vice President introduced his economic plan, he stated expressly that corporations have ESG responsibilities to their workers, community and country. In that vein, corporate governance requirements and mandated disclosures almost certainly would change.
Draft Business and Human Rights Treaty, Take 3
With little fanfare, an Intergovernmental Working Group (IGWG) released the Second Revised Draft of a proposed binding treaty on business and human rights. This is third iteration of the proposed treaty, which has been steadily progressing since June 2014, when the UN Human Rights Council adopted a resolution by Ecuador and South Africa to create an international legally binding instrument to regulate Transnational Corporations and Other Business Enterprises with respect to human rights.
Human Rights Diligence Catching Up To Anti-Corruption
An April 29 announcement from Didier Reynders, the Commissioner for Justice of the EU may be the final step in elevating human rights due diligence to a business imperative, akin to anti-corruption diligence.
U.K. Court of Appeals Holds Company Not Liable for Acts of the Police or for Following the Voluntary Principles
For many years, legal claims have been filed against companies for alleged human rights violations based on the actions of state security personnel. Numerous lawsuits also have cited voluntary commitments openly undertaken by companies, such as the Voluntary Principles on Security and Human Rights (“VPs”), in alleging that the companies owed and breached a standard of care to injured third parties. The Court of Appeal of England and Wales considered both issues in Kadie Kalma & ors v. African Minerals Ltd. & ors [2020] EWCA Civ 144, issuing a decision that should give comfort to businesses who transparently commit to the VPs and who are compelled to rely on public security providers.
OECD National Contact Points: Lessons from VEON & ANZ
OECD National Contact Point (NCP) processes—discussed in a prior post and article—are an increasingly material source of ESG-related business risk. Two recent decisions illustrate how these processes are evolving to take on a broader mandate and harder edge.
Navigating an OECD NCP Specific Instance
Over the last decade, the growing materiality of environmental, social and governance (ESG) risks has been accompanied—and spurred—by the increasing prominence of alternative dispute resolution mechanisms for ESG disputes. These institutions are one node in the tightening web of ESG-related business risk. This entry focuses on the most prominent non-judicial mechanism to resolve global ESG disputes, the OECD National Contact Point (NCP) process.
ESG and Mission-Critical Issues for Director & Officer Liability
Amidst a spirited debate around the duties of directors in relation to environmental, social, and governance (ESG) risks, two recent decisions from Delaware courts provide clarifying contours. The decisions are particularly significant since Delaware is the leading state for corporate law and the most popular jurisdiction of incorporation for publicly traded companies. Both decisions construe the scope of a board’s responsibility to monitor and oversee corporate risk under the standards set forth in In re Caremark Int’l, Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996), and its progeny.