Human Rights & Environmental Due Diligence in Ireland: Barriers to Remedy, Lecture notes of Remedies

Download Human Rights & Environmental Due Diligence in Ireland: Barriers to Remedy and more Lecture notes Remedies in PDF only on Docsity! REVIEW OF ACCESS TO REMEDY IN IRELAND 2020 Dr Rachel Widdis An independent report commissioned by the Department of Foreign Affairs under the auspices of the National Plan on Business and Human Rights 2017-2020 Executive Summary This Review of Access to Remedy in Ireland is timely. The context is the adverse impacts of business on human rights and the environment, an accountability gap, increasing litigation, and an anticipated EU legislative initiative concerning Sustainable Corporate Governance including human rights due diligence in 2021. The content considers a wide range of legal, policy, and regulatory areas. It is acknowledged that developments in Ireland will occur within the context of global and also EU level developments. This Review necessarily highlights deficits in the existing framework. It evaluates what progress is required along which dimensions in order to enable and advance remedy for potential victims overseas in Ireland. Input and feedback were sought and welcomed throughout its development. The circumstances regarding remedy in Ireland are situated within a fast evolving international context. There is realisation that voluntary initiatives, alone, have proven inadequate to prevent negative impacts on human rights and to provide redress. Globally, greater momentum in implementing voluntary initiatives, in combination with instrumental measures is required. In other jurisdictions, cases involve tens of thousands of claimants, and concern allegations of rape, torture, killing, slave labour, and environmental pollution causing damage to livelihoods and health. Rights holders who experience business-related adverse impacts face significant legal, procedural and practical barriers to remedy. Wherever it is sought, the path to remedy is excessively long and arduous. In Ireland, seeking remedy would be yet more onerous for claimants. Certain building blocks of remedy, such as mechanisms of collective redress, are unavailable. Significant legal costs, combined with a lack of available legal aid or third party funding mechanisms, can be expected to inhibit claimants.1 Some barriers for potential victims overseas may be readily addressed, by providing freely accessible complete information regarding remedies in Ireland, both judicial and non-judicial. Dismantling other barriers will require legislative assessment, which has in several instances been previously recommended, but not actioned. This review highlights developments in civil litigation and new approaches in criminal law. It proposes the consideration of successful models, which could be adapted for Ireland. It recommends international standards on effective remedy for those facing additional barriers, and specific consideration of gender dimensions. Although the consultation was inhibited by the pandemic, responses indicate that certain Irish entities have developed practices consistent with international standards. To progress, it is crucial that stakeholders are fully engaged, and that capacity is enhanced. Responding to the issues raised will require proactive and sustained measures to reduce legal, procedural, and practical barriers to remedy. 1 To the authors knowledge, litigation of the style discussed in this review has not been commenced in Ireland, although business operating in Ireland are being discussed in connection with abuses overseas. See GLAN Complaint to Irish National Contact Point (2018) available at <https://www.glanlaw.org/single- post/2018/10/24/GLAN-files-complaint-against-Irish-oil-companys-dealings-in-annexed-Western-Sahara>; Christian Aid investigation of the relationship between the ESB and the Cerrejón mine (2020) available at https://www.christianaid.ie/resources/undermining-human-rights-ireland-esb-and-cerrejon-coal. 1 Methodology and Scope The Review was completed by independent consultant Dr Rachel Widdis. The content considers a wide range of legal, policy, and regulatory areas. Within limits, it is not possible to address in detail all the aspects raised within the Review. It included a consultation, seeking input from over 80 stakeholders,8 including State services, commercial entities, and associations including organisations representing affected communities.9 Consistent with its terms, the commercial entities are mainly large operating enterprises.10 For all entities, feedback was sought on: Protection and Prevention; Remedy and Barriers to remedy; Experience of legal, practical, and procedural barriers; Barriers in cross border cases; and Developments. A draft report was circulated to relevant State Departments and related agencies for comment. Feedback also was gained during four presentations, to the National Implementation Group on Business and Human Rights, sub-group and plenary. Input and feedback from these consultative processes feeds into the Review and the recommendations flowing from it. The Human Rights Unit within the Department of Foreign Affairs has supported and facilitated this Review throughout its development. The participation of a sample of stakeholders was very valuable in its development. With thanks, they are listed with their consent in the Appendix. 8 A/HRC/41/43 ‘Gender dimensions of the Guiding Principles on Business and Human Rights - Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises’ (23 May 2019) para 60 identifies that key players including States, business enterprises and civil society organizations/human rights defenders should contribute to realizing effective remedies. Available at https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/41/43. 9 The nature of the review points to trading companies which have operations or significant supply chains overseas. Although financial institutions and asset managers may have human rights impacts linked to financing and investments, for present purposes, these were not included. 10 Enterprise Ireland https://www.enterprise-ireland.com/en/about-us/our-clients/sme-definition.html. 2 Table of Acronyms BHR Business and Human Rights BIICL British Institute of International and Comparative Law Brussels I (recast) EU Council Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters CEDAW Convention on the Elimination of all Forms of Discrimination Against Women CERD Convention on the Elimination of all Forms of Racial Discrimination CFREU Charter of Fundamental Rights of the European Union CRC Convention on the Rights of the Child CSR Corporate Social Responsibility ECHR European Convention on Fundamental Rights and Freedoms ENNHRI European Network of National Human Rights Institutions EU FRA European Union Agency for Fundamental Rights FDL Foreign Direct Liability HRDD / HR&EDD Human Rights Due Diligence / Human Rights and Environmental Due Diligence* ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Commission of Jurists IHREC Irish Human Rights and Equality Commission ILRC Irish Law Reform Commission OHCHR Office of the High Commissioner for Human Rights MPA Multi-party Action NAP National Action Plan NCP National Contact Point under the Organisation for Economic Cooperation and Development Guidelines on Multinational Enterprises NFRD EU Directive 2014/95/EU on disclosure of non-financial and diversity information by certain large undertaking and groups NGO Non-governmental Organisation NHRI National Human Rights Institution NPBHR National Plan on Business and Human Rights OECD Organisation for Economic Cooperation and Development Rome II EU Council Regulation No 864/2007 on the law applicable to non-contractual obligations UN Binding Treaty Revised Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises UNGPs UN Guiding Principles on Business and Human Rights UN SDGs UN Sustainable Development Goals UNWG UN Working Group on the issue of human rights and transnational corporations and other business enterprises * Depending on source and time, Human Rights Due Diligence is also referred to as Human Rights and Environmental Due Diligence. 3 A. INTERNATIONAL: Legal and Policy Context Whereas the raison d’etre of human rights law was directed at abuses by states and their agents, it now encompasses protection by states, from adverse impacts upon rights from private actors including companies. In parallel, the expectations which society has of business have changed.11 Human rights, rooted in the dignity of individuals, have superior status,12 In Dworkin’s words, rights are ‘trumps.’13 Business may affect a wide range of human rights, both positively and negatively.14 The field of business and human rights (BHR)15 is concerned with protection of rights and rights holders from business-related adverse impacts. For example, it considers how revenues are generated, throughout business operations. Rights and the role of law are at the centre of BHR,16 and differentiate its thrust from the field corporate social responsibility (CSR).17 Accountability and remedy for resulting harms may be administrative, judicial or non-judicial. Cases concerning business-related impacts upon rights in EU Member States include allegations of gross 11 UNGPs (n 5); Edelman Trust Barometer stating ‘not only are the stakes high for business, but so are the expectations that it will act.’ available at https://www.edelman.com/trustbarometer; US Business Roundtable, ‘Statement on the Purpose of a Corporation’ (August 2019) available at https://opportunity.businessroundtable.org/wp-content/uploads/2019/08/Business-Roundtable-Statement-on-the- Purpose-of-a-Corporation-with-Signatures.pdf. See also Justine Nolan, ‘All Care, No Responsibility?’ in Lara Blecher, Nancy Kaymar Stafford, & Gretchen C. Bellamy (eds.) Corporate Responsibility for human rights impacts. New Expectations and Paradigms (ABA Book Publishing 2014) 3, 15. 12 See for example, John Rawls, A Theory of Justice (Harvard University Press 1971), 114-115; Henry Shue, Basic Rights (Princeton University Press 1980);; Jack Donnelly, ‘The Concept of Human Rights’ in Universal Human Rights in Theory and Practice (Cornell Paperbacks 2013). 13 Ronald Dworkin, ‘Rights as Trumps’ in Jeremy Waldron (ed), Theories of Rights (OUP 1985). 14 Terms used: ‘Business’ ‘entity’ and ‘enterprise’ are generic terms which are used to capture corporation, company, and firm; A ‘parent company’ is distinguished from ‘subsidiary’, a legally separate entity. The terms ‘abuses’ and ‘adverse impacts’ are used. In a formal sense, private actors do not ‘violate’ human rights, because they are not (generally) directly bound by international human rights treaties. See Revised Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’ (Revised Draft) art 1(2) available at www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf. Under the UNGPs (n 5) an ‘adverse human rights impact’ occurs when an action removes or reduces the ability of an individual to enjoy his or her human rights. The ‘host state’ is the state in which the relevant business activities of a subsidiary of a multinational corporation occur. In general terms, the ‘home state’ of a multinational corporation is the state in which the parent corporation of the concerned group is incorporated. For the purposes of this Review, the default rule in Article 4 of the Brussels I (recast) regime is that the courts in the country where the defendant is domiciled has jurisdiction. For present purposes soft law includes all international instruments defined as codes, guidelines, or principles (excluding treaties), and codes of conduct both developed at international level and at the level of companies or sectors whether by individual corporations, NGOs, or multi- stakeholder groups. See OHCHR ‘The Corporate Responsibility to Respect Human Rights: An Interpretive Guide’ (2012) available at https://www.ohchr.org/Documents/publications/hr.puB.12.2_en.pdf. See also Robert McCorquodale and Lise Smit and Stuart Neely and Robin Brooks, 'Human Rights Due Diligence in Law and Practice: Good Practices and Challenges for Business Enterprises' (2017) 2 BHRJ 195, 199. 15 See Anita Ramasastry, ‘Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability’ (2015) 14(2) Journal of Human Rights 237. 16 The premise is that rights and obligations co-exist as two sides of the same coin. See Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP 2006) chapter 2. 17 The responsibility to respect is unrelated to philanthropic or other voluntary outreach activities. 6 tort law. In practice, holding corporate groups to account is a significant challenge.35 Victims face substantive, procedural, and practical barriers.36 Scholars indicate that a judicial finding of corporate liability occurred in just 3 out of 40 related cases brought before European courts between 1990 and 2015.37 As litigation against multinational corporations in Europe continues to increase,38 policymakers, regulators and courts are grappling with fundamental questions of attribution of liability in complex commercial enterprises with widely varying decision making structures.39 For regulators, delivering effective remedies involves ‘a balance of preventive, deterrent and redressive measures’.40 Developments in international soft law instruments concerning the impact of business on human rights are evidence of augmented expectations upon States, as well as commercial and other organisations. Initiatives include the UN Global Compact (2000),41 the UN Guiding Principles on Business and Human Rights (2011) (UNGPs),42 OECD Guidelines for Multinational Enterprises (2011),43 and ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (2017).44 An 35 See Amnesty International, ‘Clouds of Injustice: Bhopal Disaster 20 years on’ available at www.amnesty.org/en/documents/ASA20/015/2004/en/; Mahmud Hossain Opu ‘Rana Plaza trial stuck in limbo after five years’ (8 December 2018) Dhaka Tribune available at www.dhakatribune.com/bangladesh/court/2018/12/08/. 36 Stephens (n 22) 54. See also Stephen Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111(3) Yale Law Journal 443; Surya Deva, ‘Acting Extraterritorially to Tame Multinational Corporations for Human Rights Violations: Who Should Bell the Cat’ (2004) 5 Melb. J. Int'l L. 38- 39; Gwynne Skinner, Robert McCorquodale and Oliver De Schutter, ‘The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business’ (2013) 1 available at http://icar.ngo/wpcontent/uploads/2013/02/The-Third-Pillar-Access-to-Judicial-Remedies-for-Human-Rights- Violation-byTransnational-Business.pdf; International Commission of Jurists (ICJ), ‘Needs and Options for a New International Instrument in the Field of Business and Human Rights’ (2014) available at https://business- humanrights.org/en/pdf-needs-and-options-for-a-new-international-instrument-in-the-field-of-business-and- human-rights; European Commission Directorate General for Justice and Consumers ‘Study of due diligence through supply chains’ (January 2020) 229 available at https://op.europa.eu/en/publication-detail/- /publication/8ba0a8fd-4c83-11ea-b8b7-01aa75ed71a1/language-en. 37 Liesbeth Enneking, ‘Judicial Remedies: The issue of applicable law’ in Juan José Rubio and Katerina Yiannibas (eds) Human Rights in Business Removal of Barriers to Access to Justice in the European Union (Routledge 2017) 41 detailing that of the 20 civil cases within the total of 40, 7 were brought in the English courts. 38 ibid Enneking. See also Peter Muchlinski and Virginie Rouas, ‘Foreign direct-liability litigation’ in Lara Blecher, Nancy Kaymar Stafford, & Gretchen C. Bellamy (eds), Corporate Responsibility for human rights impacts. New Expectations and Paradigms (ABA Book Publishing 2014). 39 Caroline Kaeb, ‘The Shifting Sands of Corporate Criminal Liability under International Criminal Law’ (2016) 49 The Geo. Wash. Int’l Law Review 351, 352. 40 A/HRC/72/162 ‘Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises’ (July 2017) para 40 stating ‘… if any one of these elements is missing, it will undermine the overall effectiveness of remedies’, available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/N17/218/65/PDF/N1721865.pdf?OpenElement. See also David Kinley and Junko Tadaki ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’ (2004) 44 VJIL 935 on the continued conceptual and structural evolution required to address the accountability of non-state actors within international law generally, particularly human rights law. 41 UN Global Compact available at www.unglobalcompact.org/what-is-gc/mission/principles. 42 UNGPs (n 5). See section D Consultation. 43 The 2011 revision includes a dedicated human rights chapter available at http://mneguidelines.oecd.org/2011HumanRights.pdf. See section D Consultation. 44 Available at https://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/--- multi/documents/publication/wcms_094386.pdf 7 escalation is evident, including in the UN OHCHR Accountability and Remedy Project (ARP),45 Council of Europe Recommendation on human rights and business (2016),46 European Commission Corporate Social Responsibility Action Plan 2011-2014,47 and Gender Action Plan 2016-2020.48 The EU Action Plan on Human Rights and Democracy 2020-2024, includes a range of commitments relating to business and human rights.49 The robust European Union Agency for Fundamental Rights (EU FRA) Opinion in 201750 was followed by its 2019 Report on business-related human rights abuses in the EU and available remedies,51 an EU Study on access to legal remedies for victims of corporate human rights abuses in third countries in 2019,52 and EU Commission Study on due diligence through supply chains in 2020.53 Soft law and policy initiatives have an important contribution to maintain in the on-going drive towards respect for human rights becoming ingrained within business.54 The most influential global policy instrument is the UN ‘Protect, Respect and Remedy’ Framework. It is operationalised in the UNGPs, which are not legally binding.55 They are structured in three ‘Pillars’ which are conceived as distinct but complimentary: the state duty to protect; the corporate responsibility to respect; 56 and access to remedy for victims.57 The UNGPs are to be implemented via National Action Plans (NAPs).58 However, provisions for implementing access to remedy in existing NAPs are identified as generally very weak.59 With justification, Pillar III (Remedy) is referred to as ‘the forgotten pillar’.60 As the UN Working Group on the issue of human rights and transnational corporations and other business enterprises 45 OCHCR, ‘Accountability and Remedy Project: Improving accountability and access to remedy in cases of business involvement in human rights abuses’ (2014) available at www.ohchr.org/EN/Issues/Business/Pages/OHCHRaccountabilityandremedyproject.aspx. 46 Council of Europe Committee of Ministers ‘Recommendation on human rights and business’ CM/Rec(2016)3; available at www.coe.int/en/web/human-rights-rule-of-law/-/human-rights-and-busine-1. 47 European Commission, ‘A Renewed EU strategy 2011-14 for Corporate Social Responsibility’ 2 COM (2011) 681 final available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52011DC0681. 48 https://op.europa.eu/en/publication-detail/-/publication/62f7aa16-c438-11e7-9b01-01aa75ed71a1. 49 https://ec.europa.eu/transparency/regdoc/rep/10101/2020/EN/JOIN-2020-5-F1-EN-ANNEX-1-PART-1.PDF). 50 European Agency for Fundamental Rights (EU FRA) ‘Opinion on improving access to remedy in the context of business and human rights at the EU level’ (2017) Annex, 70 http://fra.europa.eu/en/opinion/2017/business- human-rights. 51 EU FRA ‘Business-related human rights abuse’ 2019 (n 18). 52 EU ‘Access to legal remedies’ 2019 (n 18). 53 EU 2020 Study (n 36). 54 Kirkebø and Langford (n 30). 55 A/HRC/8/5 (n 22) 4 [5], do not purport and were not intended to create new international law obligations, 56 It is noted that the distinction between legal obligations on states and moral responsibilities on business is characterised as ‘momentous’ by Florian Wettstein, ‘Normativity, ethics, and the UN guiding principles on business and human rights: A critical assessment’ (2015) 14(2) Journal of Human Rights, 166. See also Nolan, ‘All Care, No Responsibility?’ (n 11) 12. 57 Pillar III presents access to remedy as shared by both states and corporations. 58 See European Coalition for Corporate Justice (ECCJ), ‘A Critical Assessment of National Action Plans on Business and Human Rights’ available at www.corporatejustice.org/news/2245-a-critical-assessment-of-national- action-plans-on-business-and-human-rights-2017-update. 59 A/HRC/41/43 (n 8) para 83. 60 Amnesty International and the BHRCC, ‘Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse’ (September 2017) available at https://www.amnesty.org/en/documents/pol30/7037/2017/en/. 8 (UNWG) identifies, ‘a fundamental shift towards the remedy pillar is required.’61 Governance gaps in the States where subsidiaries or entities within the value chain of multinational corporations operate foster both potential abuses and barriers to remedy.62 As corporate accountability progresses along a pathway which increasingly emphasises the role of hard law in remedy,63 two vectors can be expected to exert influence. The first is momentum for the introduction of mandatory human rights due diligence (HRDD) in multiple EU Member States,64 following the introduction of a generally robust legislative framework in France in 2017.65 For the UN Working Group, human rights due diligence is the ‘primary expectation of behaviour’ for business.66 The EU Commission committed to introducing an EU legislative initiative on sustainable corporate governance including human rights due diligence in 2021, indicating it would be across sectors, include provisions for corporate liability, and seek to ensure access to remedy for victims of abuses.67 Secondly, the on-going development of a UN binding treaty on business and human rights.68 B. INTERNATIONAL: Remedy and Barriers B.1. The Right to Remedy The right to access to remedy imposes a duty upon states to respect, protect, and fulfil this right.69 Providing remedial mechanisms is not sufficient. The aim of remedies is to put the affected party in the position they would have been in had the harm not occurred, and States are advised to consider means to reduce legal, practical, and other barriers that could lead to a denial of remedy.70 Businesses have an independent but complementary role in realizing access to remedy. Further, in conducting their defence, corporations should not ‘…create a chilling effect on the legitimate exercise of such remedies.’71 Under the UNGPs, if a business enterprise itself identifies that it has caused or contributed to adverse impacts, 61 A/HRC/41/43 (n 8) para 83. 62 OCHCR ARP (n 45) para 4. 63 EU ‘Access to Legal Remedies’ (n 18) 6 analysis of 35 cases filed in EU Member States concerning alleged corporate abuses in third countries; Nolan, ‘All Care, No Responsibility?’ (n 11) 12. 64 EU 2020 Study (n 36). See also ECCJ http://corporatejustice.org/news/9189-evidence-for-mandatory-human- rights-due-diligence-legislation-in-europe. 65 loi no 2017-399, 27 March 2017 relative au devoir de vigilance des societés meres et des entreprises donneuses d’ordre: JO 28 March 2017, texte no. 1 (French Duty of Vigilance Law) requires certain French companies to implement due diligence in respect of their own activities, those of companies they control, and of suppliers and contractors with whom they have an established commercial relationship. 66 A/73/163 Report of the UNWG concerning human rights due diligence (16 July 2018) para 16 available at https://digitallibrary.un.org/record/1639520?ln=en. 67 Webinar available at https://responsiblebusinessconduct.eu/wp/2020/04/30/european-commission-promises- mandatory-due-diligence-legislation-in-2021/. 68 (n 14). 69 A/HRC/72/162 (n 40) para 14. Concerning a right to remedy, see (n 33). 70 UN CESCR General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (10 August 2017) E/C.12/GC/24 para 44 available at: https://www.refworld.org/docid/5beaecba4.html.; A/72/162 (n 40) para 54. 71 UN CESCR General Comment No.24 (n 70) para 44; A/72/162 (n 40) paras 36-37. 11 The effectiveness criteria of remedies should be informed by the impact upon women, the intersectional nature of discrimination faced by women, and the experience of women in barriers to accessing and enforcing remedies.103 In Ireland, recommendations for gender responsive respect for human rights by business have been made by Trócaire.104 The UNWG recommends States to apply a gender lens in implementing the UNGPs. Further, it has recommended business enterprises to ‘Adopt a gender lens to discharge their responsibilities under pillars II and III and embed access to effective remedies in their policy commitments and human rights due diligence processes’.105 Regarding gender as a cross-cutting issue, it has provided a three-step framework: gender-responsive assessment, gender-transformative measures and gender-transformative remedies.106 Issues concerning women and effective remedy have been mapped for States to consider in developing NAPs107 which should be taken into consideration.108 B.3. Enhancing Access to Remedy As it stands, the legal landscape within national systems is assessed as failing all parties: [T]he present system of domestic law remedies is patchy, unpredictable, often ineffective and fragile. It is failing victims who are unable in many cases to access effective remedies for the abuses they have suffered. It is failing some States because of the implications of current patterns of use of remedial mechanisms for capacity-building and legal development. And it is failing many companies, which are obliged to operate in an environment of great legal uncertainty and where participants are not competing on anything approaching a level playing field with respect to legal standards and levels of legal and commercial risk109 There are two primary levers to enhance access to remedy. Firstly, States can address domestic laws to counteract avoidance of appropriate accountability,110 including by lowering barriers, rendering judicial remedies more accessible, and ensuring sanction in criminal law.111 Secondly, States can address the environmental rights and working conditions, followed by cases of discrimination, incidents affecting the right to life and to remedy; Human Rights Council (2019) (n 94).; Trócaire ‘Women taking the Lead’ (n 95). 103 A/HRC/41/43 (n 8) paras 82 and 61. See generally https://www.ohchr.org/EN/Issues/Business/Pages/GenderLens.aspx. 104 ‘Women taking the lead’ (n 95). See also Hughes (2020) ‘Towards a Transformative Treaty on Business and Human Rights’ https://www.trocaire.org/wp-content/uploads/2020/10/Irish-Coalition-on-Business-and-Human- Rights_Towards-a-Transformative-Treaty-on-Business-and-Human-Rights-1.pdf 105 A/72/162 (n 40) ‘Recommendations’ para 86 (b); 87(e). 106 A/HRC/41/43 (n 8) para 5, framework and Annex. 107 Danish Institute for Human Rights (November 2018) 57 available at https://www.humanrights.dk/publications/women-business-human-rights. See also Gender and Development Network (GADN) and Corporate Responsibility Coalition (CORE), Why National Action Plans on Business and Human Rights Must Integrate and Prioritise Gender Equality and Women’s Human Rights, November 2015, available https://www.business-humanrights.org/en/big-issues/gender-business-human-rights/research-analysis/. 108 Gender-responsive business principles and resources including; Due Diligence Guidance for Responsible Business Conduct (2018); The Women’s Empowerment Principles (WEPs) including a Gender Gap Analysis Tool; The UNDP Gender Equality Seal certification; The Gender Equality in Codes of Conduct (2017) and Gender Equality in Social Auditing (2018); UN Private Sector Action for Women’s Health and Empowerment (2017). 109 Zerk (n 18) 7. 110 UNGP 26, Commentary (n 5). 111 EU FRA 2017 (n 50) Opinions 1 through 5, and 10 through 12. 12 legal and practical obstacles to access to remedy in a transnational context.112 As it stands, accessing remedy in a particular forum is impacted by substantive law, jurisdiction, applicable law, and the procedural and practical circumstances of the forum.113 B.3.1. Legal Obstacles The company law doctrines of limited liability and separate legal personality are argued to operate as a ‘shield’,114 for example, enabling parent companies to deflect or avoid claims from those impacted by ringfencing risk at the level of a subsidiary lodged in a third country.115 The obligations contained in human rights treaties cannot apply to commercial entities unless they are considered as ‘subjects’116 of international law.117 Apart from implications on the status of human rights qua rights,118 this has significant practical ramifications. It is States, under their treaty obligations, which implement the protection of rights holders from private actors.119 All EU Member States are bound to provide access to effective remedy under Article 13 of the ECHR,120 and under Article 47 of the CFREU.121 However, outside their territory or jurisdiction, the nature of States’ obligations to protect is complex and controversial.122 As it relates to remedy, this has two aspects: whether a state should seek to apply its laws extraterritorially to protect against adverse human rights impacts;123 and regulation enacted in a state which has ‘extraterritorial effects’.124 Under the UNGPs, States are to set the expectation that all business enterprises domiciled in the jurisdiction respect human rights, wherever they operate. However, the position adopted was that the 112 UNWG ‘all roads to remedy’ approach, A/72/162 (n 40) para 55 and ff; ICJ, ‘Needs and Options’ (n 36); EU ‘Access to legal remedies’ (n 18); OCHCR ARP (n 45) para 4; EU FRA (n 50) Opinions 6 to 9. 113 Enneking ‘Judicial Remedies’ (n 37) 47. 114 Surya Deva, ‘Fictitious Separation, Real Injustice: Why and How to Tame the Twin Principles of Corporate Law?’ in Amnesty International, ‘Injustice Incorporated, Corporate Abuses and the Human Right to Remedy’ (2014) 24 available at www.amnesty.org/en/documents/POL30/001/2014/en/. 115 CESCR No 24 (n 70) 42; Peter Muchlinski, ‘Implementing the New UN Corporate Human Rights Framework: Implications for Corporate Law, Governance and Regulation’ (2012) 22(1) Business Ethics Quarterly, 146. 116 Ian Brownlie, The British Yearbook of International Law (OUP 1984), 51. 117 See Stephens ‘The Amorality of Profit’ (n 22); Clapham (n 16) 76 and ff. ICJ (n 36) 19 stating there is no doctrinal impediment to imposing direct obligations on corporations. 118 Kinley and Tadaki (n 40) 5. 119 It is established that states have positive obligations to protect against rights infringements by private actors. 120 (n 33) as confirmed in Lopez Ostra v Spain (Merits) App no 16798/90, A/303-C (1995) 20 EHRR 277; Osman v United Kingdom (Merits) App no 23452/94 (1998) 29 EHRR 245, 305. See also EU FRA (n 50) 70. 121 CFREU art. 6 (n 33). Human rights are part of the general principles of EU law, Internationale Handelsgesellschaft [1970] (Case 11-70) ECLI:EU:C:1970:114. 122 Soering v United Kingdom Application No 14038/88, 7 July 1989; Rantsev v Cyprus & Russia Application No 25965/04, 7 January 2010. See also Golder v United Kingdom Application No 4451/70, 21 February 1975; Ilascu & Others v Moldova & Russia Application No 48787/99, 8 July 2004 [331]; Bankovic & Others v Belgium & Others Application No 52207/99, Admissibility, 12 December 2001 [68]; Markovic and Others v Italy Application No 1398/03, Merits, 14 December 2006; White v Sweden Application No 42435/02, 19 December 2006; Al-Skeini and Others v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 7 July 2011 [131]. 123 A/HRC/32/19/Add.1 box 3 (n 79). ‘“extraterritorial jurisdiction”…. refers to the ability of a State, through various legal, regulatory and/or judicial mechanisms, to prescribe and enforce laws … outside its own territory.’ 124 General Comment No. 24 (n 70) para 31; EU ‘Access to Remedies’ (n 18) 231 stating: ‘…It is increasingly recognised that the limitations posed by traditional notions of territorial jurisdiction and separate corporate identity need to be updated to address the impacts of globalised supply chains and complex corporate groups.’ 13 extraterritorial application of the State duty to secure human rights against abuses by corporations remains ‘unsettled’ in international law.125 This position contrasts with support for a more expansive approach to positive obligations on States from the UN treaty bodies concerning the ICCPR,126 ICESCR,127 CERD128 and CRC.129 Recognising that scholars remain divided on the issue,130 the position is cogently summarised as ‘a consensus that states are allowed (and some argue, obliged) to regulate the adverse human rights and environmental impacts of their multinational corporations that occur outside their territories.’131 Notwithstanding, States can enhance protection and remedy by enacting home state regulation with extraterritorial effect.132 EU States, including Ireland, have employed this model with success for financial style crimes.133 The question becomes to extend beyond economic crimes to protect human rights, as discussed in the context of Ireland in Section C.134 B.4. Judicial Remedies For business-related harms, the mechanism most employed within the EU is judicial remedy. It is far more frequently sought than non-judicial remedy.135 Overall, enhancing access to remedy requires addressing domestic provisions ‘to counteract the avoidance of appropriate accountability’,136 rendering 125 See UNGP 2 Commentary (n 5). Substantial scholarly commentary rejects this stance, see Olivier de Schutter, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1(1) Business and Human Rights Journal 44, 45; Daniel Augenstein, ‘Torture as Tort? Transnational Tort Litigation for Corporate-Related Human Rights Violations and the Human Right to a Remedy’ (2018) 18:3 Human Rights Law Review 593. 125 A/HRC/32/19/Add.1 (n 79) box 3. ‘“extraterritorial jurisdiction” in the context of public law regulation and enforcement, refers to the ability of a State, through various legal, regulatory and/or judicial mechanisms, to prescribe and enforce laws with respect to companies and business activities outside its own territory.’ 126 UNHRC General Comment No. 31 ‘Nature of General Legal Obligations Imposed on States Parties to the Covenant’ para 13. 127 (n 33); CESCR General Comment No. 14 ‘The Right to the Highest Attainable Standard of Health’ para 39; General Comment No. 15 ‘The Right to Water’ para 31; General Comment No. 24 ‘(n 70) paras 30-33. 128 See CERD Concluding Observations/Comments re Canada’ (25 May 2007) CERD/C/CAN/CO/18 para 17. 129 CRC General Comment No. 16. Paras 38-43 (n 98). 130 See for example, Marko Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8(3) Human Rights Law Review 413; Claire Methven O’Brien, ‘Are European States Responsible’ in Angelica Bonifanti (ed) Business and Human Rights in Europe (Glawcal 2019); Daniel Augenstein and David Kinley, ‘Beyond the 100 Acre Wood, ‘In which international human rights law finds new ways to tame global corporate power’ (2015) 19(6) Int’l Journal of Human Rights 828. 131 EU 2020 Study Commission ‘study of due diligence through the supply chain’ (n 36) 223. 132 In this model, the impact outside the national territory is indirect, circumventing concerns of overreach and international comity. See generally De Schutter (n 125) 52; Wouters and Ryngaert (n 88) 956. 133 inter alia Bribery Act 2010 (UK); Criminal Finances Act 2017 (UK); Sanctions and Anti-Money Laundering Act 2018 (UK) Modern Slavery Act 2015 (UK) available at www.legislation.gov.uk/ukpga/2018/13/contents; French Duty of Vigilance Law (n 65); Ireland Criminal Justice (Corruption Offences) 2018 available at http://www.irishstatutebook.ie/eli/2018/act/9/enacted/en/html 134 A/HRC/41/43 (n 8) para 78; Celia Wells, ‘Corporate failure to prevent economic crime – a proposal’ (2017) Crim LR 6; Liz Campbell, ‘Corporate Liability and the Criminalisation of Failure’ (2018) 12(2) Law and Financial Markets Review 58; Widdis (n 6) chapter 2. 135 EU FRA (n 18); 2019, Figure 3. Judicial remedy (73%), with NCP’s just 6%, and NHRIs (3%) 136 UNGP 26, Commentary (n 5). 16 Nigeria cases.160 In Canada, the Hudbay,161 Garcia,162 and Araya163 cases are providing valuable precedent. It is anticipated that in time these cases will advance accountability. They represent important opportunities promote a hard law edge to soft law instruments,164 and to promote evolving international standards. Further, the legal concepts are portable across jurisdictions.165 However, FDL style cases are not feasible unless procedural and practical circumstances of the forum are adequate to enable litigation. Adverse circumstances may thus result in a denial of access to justice in both the host and the home state. B.4.3. Jurisdiction & Applicable Law Grounding jurisdiction in the home state of the parent company is a significant challenge in FDL cases.166 While the doctrine of forum non conveniens is no longer a barrier,167 national rules for determining jurisdiction remain a significant hurdle for claimants. A combination EU Regulation Brussels I (recast) and national civil procedure rules govern joining a subsidiary to proceedings against the ‘anchor’ defendant.168 The right to a fair trial under the ECHR169 has a potential role in litigation, particularly in States where claimants face significant procedural or practical barriers to remedy. Notably, altering Brussels I (recast) for business-related human rights is advocated, including adding a provision for forum necessitatis in civil claims sufficiently connected to the forum which risk a denial 160 See Cees van Dam, ‘Preliminary judgments Dutch Court of Appeal in Shell Nigeria case’ available at www.ceesvandam.info/default.asp?fileid=643. 161 [2013] ONSC 1414. 162 Garcia v Tahoe Resources Inc. [2017] BCCA 39. 163 (n 146). 164 See ICJ and Core (n 159). 165 Widdis (n 6). 166 Enneking, (n 37); Muchlinski and Rouas (n 38). Meeran (n 157157) 385 highlighting that In the course of the forum non conveniens dispute alone in Lubbe v Cape plc [2000] 1 WLR 1545, 1,000 of the 7,500 claimants died. Even if a forum of necessity is provided for in a state, a wide margin of appreciation has been accorded concerning the application of domestic provisions. See Naït-Liman v Switzerland (Grand Chamber) App no 41615/07 (6 July 2010) [218]-[220]. See also Burkhard Hess and Martina Mantovani, ‘Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation’ (January 29, 2019) MPILux Research Paper 2019 (1) available at https://ssrn.com/abstract=3325711. 167 Brussels I (n 152) in C-281/02 Osuwu v Jackson [2005] ECR 1 1383. ‘Access to Remedies’ (n 18) 206. 168 ibid Brussels I recast Article 6(1) provides: ‘If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State’. 169 ECHR (n 33). See Arnaud Nuyts, ‘Study on Residual Jurisdiction’ (2007) available at http://ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf; Daniel Augenstein and Nicola Jägers, ‘Judicial Remedies: The issue of jurisdiction’ in Juan José Rubio and Katerina Yiannibas (eds) Human Rights in Business Removal of Barriers to Access to Justice in the European Union (Routledge 2017), 29–30; EU (n 18) 230 noting that ‘the Victims’ Rights Directive has fallen short of ensuring that victims of corporate crimes are afforded access to justice’. 17 of justice.170 In general, the laws of the country of harm are applied in litigation.171 The operation of this rule under EU Regulation Rome II172 may negatively impact remedy, and has been argued to inhibit development of law in the forum,173 and to lead to inconsistent results.174 For business-related human rights claims, adding a choice of law provision to Rome II is advocated. Potentially, this would allow claimants to choose the law of the forum where a defendant, such as a parent company, is domiciled.175 B.4.4. Practical Barriers to Judicial Remedy Experience shows that seeking remedy is excessively long, costly, and arduous.176 The pathway to remedy is beset with barriers, and additionally so for women, vulnerable or marginalised groups.177 In the Aguinda v Chevron case, twenty eight years of litigation, including judgment obtained in Ecuador, failed to yield compensation or satisfactory remediation of the lands for the indigenous communities.178 Claimants face barriers of funding, legal and technical expertise, deciphering the structure of multinational groups and accessing information held within it, while language and distance complicate cases. Flowing from this, the risk of denial of justice weighs heavily in jurisdictional proceedings.179 B.5. Non-Judicial Remedies Ensuring access to remedy requires that non-judicial remedies, including company level grievance mechanisms, are effective. National human rights institutions are expected to support non-judicial remedies in providing practical supports.180 Non-judicial grievance mechanisms should meet the effectiveness criteria in the UNGPs.181 To respond to the intersectional nature of discrimination faced by women, these should be interpreted in a gender responsive manner. It is crucial that information on 170 EU Parliament ‘Report on corporate liability for serious human rights abuses in third countries’ (2015/2315(INI)) available at www.europarl.europa.eu/doceo/document/A-8-2016-0243_EN.html?redirect. EU FRA 2017 (n 50) Opinion 4 and Opinion 9; EU ‘Access to Remedies’ (n 18) 111. See also Draft Opinion of the Committee of Foreign Affairs for the Committee of Legal Affairs to the recommendations to the [EU] Commission on corporate due diligence and corporate accountability (2020/2129(INL) <https://www.europarl.europa.eu/doceo/document/AFET-PA-655782_EN.pdf>. 171 Applying the lex loci damni, inter alia, to substantive issues, burden of proof, and rules governing damages. 172 Council Regulation (EU) No 864/2007 on the law applicable to non-contractual obligations [2007] OJ L 199. (Rome II) art 4(1). 173 Inter alia Hess and Mantovani (n 166); Van Dam (n 160). 174 Leveraging the exceptions within Rome II (n 172) is anticipated to increasingly feature in litigation. See Enneking (n 37) concerning transboundary torts, art 7 and Lluyia v RWE (n 153). Also concerning human rights due diligence as an overriding mandatory provision under art 16 and international standards under art 17. 175 See (n 170). See also Ekaterina Aristova, ‘Tort Litigation against TNCs in the English Courts: The Challenge of Jurisdiction’ (2018) 55(2) Utrecht Law Review 6, 21. 176 See (n 37); EU ‘Access to Legal Remedies’ (n 18). See Manuel A. Gómez, The Global Chase: Seeking the Recognition and Enforcement of the Lago Agrio Judgment Outside of Ecuador, (2013) 1(2) Stanford Journal of Complex Litigation 429. 177 See section B. CEDAW general recommendation No.33 (2015) (n 92); A/HRC/41/43 (n 8) para 51-61, para 52 (e) para 82; A/72/162 (n 40) para 86 (b); 87(e); EU FRA (n 18) 2.9 and (n 50) 24-33. 178 For an outline, see Manuel A. Gómez, The Global Chase: Seeking the Recognition and Enforcement of the Lago Agrio Judgment Outside of Ecuador, (2013) 1(2) Stanford Journal of Complex Litigation 429. 179 Vedanta [2016] EWHC 975 (TCC) [90]-[97];[169]-[198]; (SC) (n 158) [102]; Garcia (n 162) [30],[128]-[129]. 180 EU FRA 2019 (n 18) 3. 181 UNGP 31 (n 5) being legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and based on dialogue and engagement. 18 mechanisms and aids is accessible, including adapted to those facing additional barriers. EU research in 2019 found ‘…in none of the 30 countries [studied]… was there government-provided, publicly available online guidance for how to access remedy in cases of business and human rights violations.’182 B.6. Impact of Disclosure and Transparency Initiatives on Remedy Directive 2014/95/EU on disclosure of non-financial and diversity information by certain large undertaking and groups (NFRD)183 is scheduled for review.184 Any resultant revisions may adopt a more prescriptive approach to addressing human rights risks.185 At state level, existing reporting initiatives may target certain human issues, such as modern slavery or child labour, but regulation can be considered as fragmented,186 and enforcement may often relate only to compliance with reporting itself.187 In terms of preventing abuses occurring, it is legislation which is ‘stringent’, rather than based on ‘reporting’, which appears to underpin changes in corporate practice.188 B.7. Human Rights Due Diligence within the UNGPs Under the UNGPs, conducting human rights due diligence (HRDD) is a key element in the responsibility of business enterprises to respect human rights. The concept of HRDD in the UNGPs aims to prevent and mitigate human rights impacts in which an business might become involved.189 It differs from the familiar notion of commercial due diligence in that it is aimed at risks to ‘rights holders’ beyond the business enterprise. It extends over all human rights, and applies to all enterprises regardless of their size, sector, operational context, ownership and structure.190 The HRDD responsibility of business covers both impacts the business may cause or contribute to through its own activities, and which may be directly linked to its operations, products or services by its business relationships. It 182 EU FRA 2019 (n 18) 3, citing the example of the Belgian NAP which provided for a hub with details on access to remedy in cases of business-related human rights abuse. 183 Council Directive 2014/95/EC of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups with EEA relevance [2014] OJ L 330, 1–9 (NFRD). 184 As a regulatory approach it is not considered in sync with the proactive thrust of mandatory human rights due diligence. See Karin Buhmann, ‘Neglecting the proactive aspect of human rights due diligence? A critical appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One avenue for promoting Pillar Two action’ (2018) 3(1) Business and Human Rights Journal 25. See also Justine Nolan, ‘Hardening Soft Law: Are the Emerging Corporate Social Disclosure Laws Capable of Generating Substantive Compliance with Human Rights?’ (2018) Brazilian Journal of International Law No. 18-63, 10-18; ECCJ (n 64). 185 A 2020 assessment of the sustainability disclosures of 1,000 European companies suggests the NFRD is not meeting its objective of ensuring business transparency around ESG (environmental, social and governance) challenges and risks, available at https://www.allianceforcorporatetransparency.org/database/. See also ECCJ available at http://corporatejustice.org/news/8490-review-of-eu-non-financial-reporting-framework. 186 See Ingrid Landau, ‘Human Rights Due Diligence and the risk of Cosmetic Compliance’, Melbourne Journal of International Law, Vol 20, Issue 1, July 2019 221. See also McCorquodale et al (n 14) 202; Marcia Narine, 'Disclosing Disclosure's Defects: Addressing Corporate Irresponsibility for Human Rights Impacts' (2015) 47(1) Columbia Human Rights Law Review 84. 187 For example, Art 19a (5) and (6) of the NFRD (n 183183). 188 Comparing 25 FTSE 100 implementation, Genevieve LeBaron and Andreas Rühmkorf ‘Steering CSR Through Home State Regulation: A Comparison of the Impact of the UK Bribery Act and Modern Slavery Act on Global Supply Chain Governance’ Global Policy 8:3 (2017). 189 See also OCHCR ‘interpretive guide’ (n 14) key concepts, 6. 190 UNGP 14 and 17 and Commentary (n 5); OCHCR, ‘an interpretive guide’ (n 14) 4. 21 and other international instruments relevant to business and human rights including the core conventions of the ILO.210 Ireland has been characterised as an overall ‘obedient state’ regarding international human rights law,211 though the impact may be nuanced.212 As the supreme source of fundamental rights in Ireland,213 ‘the Constitution continues to dominate the space in which legal advocacy and judicial thinking is concerned with human rights’.214 Under the Voluntary Review of progress on the UN Sustainable Development Goals (SDGs),215 the Baseline Assessment identified challenges in goals relevant to business and human rights. To date, Ireland has not delivered a national statement at sessions of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. The European Union has, to date, represented the views of EU Members States, including Ireland, at sessions of the open-ended intergovernmental working group. Ireland has contributed to the EU approach through its permanent missions in Brussels and Geneva.216 This review concerns access to remedy for potential victims overseas of human rights abuses by companies domiciled in Ireland. As the Baseline Assessment identified, ‘A thorough review of remedies which focuses chiefly on meaningful access to remedies is therefore an important step in advancing remedies in the Irish context.’217 C. 1.1. National Plan on Business and Human Rights 2017-2020 After a consultative process,218 the National Plan on Business and Human Rights (NPBHR) was published in 2017.219 It affirms that the State has ‘long valued and championed human rights and this is 210 Forced Labour Convention (ILO No. 29) 39 UNTS 55; Freedom of Association and Protection of the Right to Organise Convention (ILO No. 87 ); Right to Organise and Collective Bargaining Convention (ILO No. 98 ) 96 UNTS 257; Equal Remuneration Convention (ILO No. 100), 164 U.N.T.S. 303; Abolition of Forced Labour Convention (ILO No. 105), 320 UNTS 291; Discrimination (Employment and Occupation) Convention (ILO No. 111), 362 U.N.T.S. 31, ratified 1999; Convention concerning Minimum Age for Admission to Employment (ILO No. 138) UNTS 297; Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No.183). 211 Marie Luce Paris, ‘The ECHR: Implementation Mechanisms and Compliance’ in Suzanne Egan (ed) International Human Rights: Perspectives from Ireland (Bloomsbury Professional 2015) 99. 212 Suzanne Kingston and Liam Thornton, ‘A Report on the Application of the European Convention on Human Rights Act 2003 and the European Charter of Fundamental Rights: Evaluation and Review (2016) 52 available at <https://www.lawsociety.ie/globalassets/documents/committees/hr/echrreport30july2015.pdf. 213 In Ireland, the impact of IHRL is seen a ‘strong-form’. See Colm O’Cinnéide, ‘Irish Constitutional Law and Direct Horizontal Effect – A Successful Experiment?’ in Human Rights in the Private Sphere: A Comparative Study” (Vol 1) Oliver and Fedtke (eds) (Routledge Cavendish, 2007) 213, 214. 214 See Egan et al (n 211) 78. 215 Government of Ireland, ‘The Sustainable Development Goals National Implementation Plan 2018-2020’ (April 2018); Government of Ireland, ‘Ireland - Voluntary National Review 2018: Report on the Implementation of the 2030 Agenda to the UN High-level Political Forum on Sustainable Development’ (June 2018). 216 See also Shane Darcy ‘Embedding Business & Human Rights in Ireland: Legislating for Human Rights Due Diligence’ available at https://ssrn.com/abstract=3506384. See also Hughes (2020) ‘Towards a Transformative Treaty on Business and Human Rights’ https://www.trocaire.org/wp-content/uploads/2020/10/Irish-Coalition-on- Business-and-Human-Rights_Towards-a-Transformative-Treaty-on-Business-and-Human-Rights-1.pdf . 217 Baseline Assessment (n 2) 51. 218 For example, submissions from Amnesty International (March 2014); Trócaire, (October 2014). See also IHREC; FLAC, IBEC and Christian Aid Ireland submissions (March 2015) available at www.ihrec.ie/documents/submission-irelands-national-action-plan-business-human-rights/. 219 (n 2). 22 reflected in our foreign policy which reaffirms our commitment to the universality, indivisibility and interrelatedness of all human rights.’220 The National Plan has been criticised for emphasising ‘promotional aspects’ at the expense of substantive engagement.221 It is cogently characterised as a ‘light touch’ and ‘soft recommendatory approach’,222 coupled with ‘lethargy in implementation.’223 The NPBHR provides for a Business and Human Rights Implementation Group,224 and sets out initial priorities for it.225 The National Plan itself tasks the Implementation Group, which is comprised of members of civil society, business and government, with ‘developing timeframes for delivering and reporting on each of the actions which have been assigned to it.’ The Baseline Assessment of the Legal and Regulatory Framework in 2019 was a significant step forward.226 It points to achievements since the launch of the National Plan, and highlights commitments remaining to be actioned.227 The revision of the National Plan on Business and Human Rights should be robust in its impact.228 Consistent with commentary, it is hoped that the new Plan will start in the right place and go up several gears.229 C.2. State Based Non Judicial Mechanisms C.2.1. Irish Human Rights and Equality Commission The Irish Human Rights and Equality Commission (IHREC) is the national human rights institution (NHRI). It operates under the Public Sector Equality and Human Rights Duty, and is an independent public body which accounts to the Oireachtas.230 Under section 10 (1) of the Human Rights and Equality 220 NAP (n 2) 5. See also See ‘Ireland Connected: trading and investing in a dynamic World’ http://www.merrionstreet.ie/merrionstreet/en/imagelibrary/20170308_ireland_Connected.pdf. 221 Ciara Hackett, Ciarán O'Kelly, and Clare Patton, ‘The Case of the Irish National Contact Point for the OECD Guidelines for Multinational Enterprises: Challenges and Opportunities for the Business and Human Rights Landscape in Ireland’ available at https://ssrn.com/abstract=3645083. 222 Darcy (n 216).. 223 ibid Darcy, 5. 224 Under the NAP, 9 ‘The department of Foreign affairs and trade is the lead unit and will provide the secretariat for the Business and Human Rights implementation group. Minutes of meetings of the Business and Human Rights Implementation Group are available at https://www.dfa.ie/our-role-policies/international-priorities/human-rights/business-and-humanrights/ 225 See ‘Initial priorities for the Business and Human Rights implementation group ‘, ‘The State Duty to Protect Human Rights’ and ‘The Corporate Responsibility to Respect Human Rights’10 https://www.dfa.ie/media/dfa/alldfawebsitemedia/National-Plan-on-Business-and-Human-Rights-2017-2020.pdf 226 (n 2). 227 NAP (n 2) Recommendation No. 15 is to review of how best to ensure remedy for potential victims overseas of human rights abuses by Irish companies, with a focus on legal, procedural or financial barriers to justice. 228 Darcy (n 216) highlights a number of relevant statements including ‘It is time to discuss the role of human rights in business’ Irish Independent (7 November 2014); Ireland Statement, Human Rights Council, 26th session, 16 June 2014, available at https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/int- priorities/humanrights/national-statement-general-debate-items-2-3.pdf; Government of Ireland, ‘One World, One Future; Ireland’s Policy for International Development’ (2013), 21; Government of Ireland, ‘The Global Island: Ireland’s Foreign Policy for a Changing World’ (2015). 229 Baseline Assessment (n 2) ‘Gaps and Recommendations’ 12. At 13, noting that Ireland is a participant State in the Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies During Armed Conflict, but is not a party to several relevant initiatives including the Extractive Industries Transparency Initiative (EITI), International Code of Conduct for Private Security Providers Association (ICoCA). 230 See UN ‘Principles relating to the Status of National Institutions’ General Assembly resolution 48/134 of 20 December 1993 (Paris Principles) available at https://nhri.ohchr.org/EN/AboutUs/Pages/ParisPrinciples.aspx 23 Commission Act 2014: ‘The functions of the Commission shall be (a) to protect and promote human rights and equality, (b) to encourage the development of a culture of respect for human rights, equality, and intercultural understanding in the State, (c) to promote understanding and awareness of the importance of human rights and equality in the State, (d) to encourage good practice in intercultural relations, to promote tolerance and acceptance of diversity in the State and respect for the freedom and dignity of each person, (e) to work towards the elimination of human rights abuses, discrimination and prohibited conduct.’231 The exercise of its powers, is a decision for the IHREC at its discretion, consistent with the priorities in its Strategic Statement 2019-2021: (1) ‘Protect the rights of individual persons who face the greatest barriers to justice; (2) Influence legislation, policy and practice; (3) Engage with key organisations to address discrimination and human rights abuses; (4) Raise the quality and broaden the extent of the dialogue on human rights and equality issues.’232 The competencies of the IHREC under statute include potentially powerful legal functions, such as the power to apply to the higher courts to appear as an amicus curiae in proceedings involving or concerning human rights or equality.233 It may make legislative observations.234 In specified circumstances, it can provide legal representation,235 and can issue ‘parallel reports’ to international treaty monitoring bodies.236 The IHREC made valuable submissions to the development of the National Plan on Business and Human Rights in 2015.237 The IHREC engages with international networks including the European Network of National Human Rights Institutions (ENNHRI).238 The ENNHRI webpage links to a report of the European Union Agency for Fundamental Rights (EU FRA), ‘Strong and Effective National Human Rights Institutions’ (2020),239 which makes reference to the role of NHRIs 231 http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10. 232 https://www.ihrec.ie/about/strategicpriorities/. See also www.ihrec.ie. 233 Recent activity includes cases relating to ‘data privacy remedies, prisoners’ rights, children’s rights, the rights of asylum seekers and non-EU nationals to live/work in Ireland and the bringing of complaints pursuant to the Employment Equality Acts 1998–2015.’See https://www.ihrec.ie/our-work/legal-activity/amicus-curiae-power/. 234 https://www.ihrec.ie/legislative-observations/ 235 See s.10(1); s.10((2)(e)-(g); s.40 and 41 Irish Human Rights and Equality Commission Act 2014 available at http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10. The website states, ‘The Commission through its legal functions can also provide practical assistance, including under specific circumstances, legal representation, to persons in vindicating their rights under human rights and anti- discrimination legislation, in particular under the Employment Equality Acts 1998–2015, the Equal Status Acts 2000–2015, the European Convention on Human Rights Acts 2003 and 2014, and more generally in relation to the protection and promotion of human rights and equality.’ 236 https://www.ihrec.ie/reports-international-bodies/. 237 https://www.ihrec.ie/?s=business. 238 IHREC in the context of this Review, October 2020. The IHREC in its feedback indicated an interest in the activities of NHRIs in other jurisdictions. 239 EU FRA 2020, 32. Available at https://fra.europa.eu/en/publication/2020/strong-effective-nhris Noting that in 2017, the EU FRA called for ‘Paris Principles-compliant NHRIs to be part of a comprehensive system for access to remedy’ (Opinion 13) (n 50); In 2019 (n 18), the EU FRA focus paper highlighted persistent issues in access to remedy in the area of business and human rights. It noted the role of non-judicial mechanisms, including NHRIs can support victims, with advice, accepting cases and possibly taking cases. With regard to NHRIs, the focus paper notes ‘[the] role of non-judicial mechanisms, such as National Human Rights Institutions 26 The Irish NCP may be considered to be in a transitional phase as it prepares for a peer review in 2021. This process, designed to support NCPs in making improvements, involves an assessment by a team of experienced NCPs of all aspects of functioning, including information provision, promotion, and handling of complaints. It is positive that this process is being engaged. The NCP webpage has recently been updated, which is expected to increase utility for stakeholders, and includes enhanced guidance on the complaints process,259 and links to the extensive sectoral guidance and best practice sharing of the OCED, including on Due Diligence for Responsible Business Conduct.260 Practice indicates that structure is part of the challenge for the Irish NCP.261 For example, the Ireland NCP is within a small number of NCPs which are hosted within one government department.262 While it is not unique in this, and informal communication with state services and Departments is engaged, structure is a factor identified by the OECD as running risks, inter alia, of lack of connection with other ministries and external stakeholders, perception of a lack of impartiality, and an obstacle to visibility.263 Commentators cogently highlight that the performance of the Irish NCP could be enhanced by referring back to the core criteria of ‘functional equivalence’: visibility, accessibility, transparency and accountability.264 Engagement with actors in business, law, and civil society in Ireland is advocated. Similarly, measures increasing transparency of the activity of the NCP. Raising visibility and opportunities for knowledge transfer, such as attendance at conferences is encouraged.265 More is possible, as is evident from other NCPs.266 However, the NCP can only go as far in promoting the OECD Guidelines in Ireland as its structure and resourcing permits it to. In this, as the OECD notes in its Progress Report: NCPs have a huge potential to affect change, both through their promotional work and through the handling of cases. Limitations in NCP activities are not for lack of willingness from the 259 https://enterprise.gov.ie/en/Publications/Publication-files/OECD-Flyer-on-Specific-Instance-Complaints.pdf. 260 See also http://mneguidelines.oecd.org/factsheet-working-together-national-human-rights-institutions-and- OECD-guidelines-for-MNEs.pdf. 261 For comparison, the UK NCP steering committee including external members from stakeholder groups such as business, trade unions and NGOs, representatives from relevant government departments. It has a dedicated budget and ‘a small team of permanent civil servants who work exclusively on the priorities of the UK NCP’ See https://www.gov.uk/government/organisations/uk-national-contact-point/about/our-governance#steering-board. 262 OECD Meeting at Ministerial Level ‘Progress Report on National Contact Points for Responsible Business Conduct..’ (May 2019) 7 listing Ireland as one of eight NCPs ‘based in one single ministry that do not involve other ministries in the work of the NCP and also do not involve stakeholders in their structure’ available at https://www.oecd.org/mcm/documents/NCPs%20-%20CMIN(2019)7%20-%20EN.pdf. 263 ibid re structure and impact on activity 8 paras 20-22. See also Hackett et al (n 221) 9. 264 Hackett et al (n 221) 8 stating ‘Unfortunately, the Irish Government, and the Irish NCP have not been active in developing the business and human rights infrastructure domestically. Despite the publication of the NAP, for example, the failure to implement this to date emphasises the apparent and ongoing unwillingness to engage beyond the bare minimum on such issues that cut across the corporate/state landscape.’ 265 See 2019 ‘Progress Report’ (n 262) 12, Ireland is listed as one of five NCPs which carried out no promotional activities in either 2018 or 2017 (Egypt, Estonia, Iceland, Ireland and Jordan) available at https://www.oecd.org/mcm/documents/NCPs%20-%20CMIN(2019)7%20-%20EN.pdf. See also See ‘Annual Report on the OECD Guidelines for Multinational Enterprises 2018’ 27 and Ireland page 3 available at https://mneguidelines.oecd.org/2018-Annual-Report-MNE-Guidelines-EN.pdf. 266 See Annex 1 https://www.oecd.org/mcm/documents/NCPs%20-%20CMIN(2019)7%20-%20EN.pdf. 27 staff involved but stem from the challenges faced in obtaining political commitment and financial support. 267 It is to be hoped that the 2021 Peer Review will yield improvements for the Irish NCP. Pending the outcome of the Peer Review, recommendations for consideration are included in Section F. C.3. Ireland – State-Based Judicial Remedies State based judicial remedies can be anticipated to be the dominant mechanism of remedy.268 The threads of criminal and civil law, and future regulation of human rights due diligence, interact with the potential impact of the Irish Constitution. As outlined, litigation against multinational corporations in their home states continues to grow. Recalling that underlying on-going cases in the UK, Netherlands and Canada, are allegations including rape, torture, killing, slave labour, and environmental pollution causing damage to livelihoods and health.269 As the UN High Commissioner for Human Rights notes: Although causing or contributing to severe human rights abuses would amount to a crime in many jurisdictions, business enterprises are seldom the subject of law enforcement and criminal sanctions. Private claims often fail to proceed to judgment and, where a legal remedy is obtained, it frequently does not meet the international standard of “adequate, effective and prompt reparation for harm suffered”270 C.3.1. Corporate Criminal Liability The issues with corporate accountability in criminal law outlined in section B.4.1 resonate in Ireland. Within criminal law, well documented problems with the identification method of attribution of liability negatively impact enforcement.271 This is particularly so within larger more complex commercial organisations, which are those which have been typically involved in litigation for business-related adverse impacts. To overcome such issues and target behavioural change, extension of the existing models of ‘failure to prevent’ offences may offer benefits. This model is recognised as a shift in approach to corporate liability,272 but is cogently argued to be more effective than ‘orthodox’ criminal prosecution.273 In driving business to ensure that ‘offences are not committed in its name or on its 267 See Progress Report (n 262) paras 47-49. 268 (n 135). 269 Respectively (n 161); (n 162); (n 146); (n 158); (n 159). 270 Human Rights Council (10 May 2016) “Improving accountability and access to remedy for victims of business- related human rights abuse - Report of the United Nations High Commissioner for Human Rights” A/HRC/32/19 271 Law Reform Commission ‘Report on Regulatory Powers and Corporate Offences’ Volume 2 (2018) LRC 119- 2018 570 (ILRC Corporate Offences) 570. See also Campbell (n 134 ) 57. 272 ILRC (Corporate Offences) (n 271) 399 on how corporate bodies are treated in criminal law and rendering the corporate body criminally liable for failure to observe a duty of care in the UK Corporate Manslaughter and Corporate Homicide Act 2007. 273 Campbell (n 134) 57 arguing as more straightforward than both identification and gross negligence approach. 28 behalf,’274 it arguably syncs with developments regarding parent company duty of care within civil litigation and the concept of human rights due diligence. C.3.1.1. Failure to Prevent for Human Rights Abuses In the UK and in Ireland, established offences of bribery/corruption provide failure to prevent models, which could be extended to impact upon remedy in business and human rights. Under the UK Bribery Act 2010, a corporate entity may be liable for its failure to prevent an officer, employee, agent or subsidiary committing the offence.275 It is a strict liability offence. The onus is on the entity to prove that it had ‘adequate procedures’ to prevent the conduct,276 assessed against principles which are appropriately ‘flexible and outcome focused’.277 The model has been extended to offences of failure to prevent tax evasion in the UK Criminal Finances Act 2017,278 and is also employed in other jurisdictions.279 While limits preclude further elaboration, criticisms regarding failure to prevent offences in the UK are acknowledged, and arguably can be addressed.280 Notably, post legislative scrutiny of the UK Bribery Act in 2019 termed it ‘much praised.’281 274 ILRC Corporate Offences (n 271). From a similar perspective concerning economic crime, see also UK Ministry of Justice, ‘Corporate Liability for Economic Crime: Call for Evidence’ (2017) 17 available at www.gov.uk/government/consultations/corporate-liability-for-economic-crime-call-for-evidence. 275 Section 7. See ILRC Corporate Offences (n 271) 387 noting s.7 formula potentially results in the conviction of directors or senior officers who would otherwise have avoided liability due to an inability to prove intention or knowledge. 276 Article 7(2). The Guidance on the Act outlines 16 factors to be considered including the level of control over the activities of the associated person and the degree of risk that required mitigation. At 20-28, it includes six principles concerning procedures to prevent: proportionate procedures, top level commitment, risk assessment, due diligence, communication, training, monitoring and review. Available at www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf. 277 ILRC Corporate Offences (n 271) 573. 278 The guidance document, ‘Tackling tax evasion: legislation and guidance for a corporate offence of failure to prevent the criminal facilitation of tax evasion’ (2016), para 1.3. explains that the policy objective of extending the use of the ‘failure to prevent model’ was to ‘overcome the difficulties in attributing criminal liability to corporations for the criminal acts of those who act on their behalf’. Available at www.tax.org.uk/system/files_force/file_uploads/160715%20Corporate%20offence%20of%20failure%20to%20 prevent%20the%20criminal%20facilitation%20of%20tax%20evasion%20- %20CIOT%20comments.pdf?download=1. See Campbell (n 134) 61 identifying that the arguably less onerous standard of ‘reasonable procedures’ in the 2017 Act is a result of lobbying. While the person must be providing services for or on behalf of the corporate entity, unlike s.7 of the 2010 Act, it is not a requirement that the offence be for the benefit of the it. 279 Penal Code of Finland, chapter 7 section 2; Swiss Penal Code Article 102.1 and 102.2; Canadian Criminal Code (n 318) section 22.2(c). 280 ILRC Corporate Offences (n 271). Concerns over the effectiveness of the model expressed by Campbell (n 134) 63-66. For details of increased activity and corporations charged with Section 7 failure to prevent offences, see www.sfo.gov.uk. See also Widdis (n 6) chapter 2. Additional critiques of such offences in the UK include possible concerns with due process rights for corporations and use of a reverse burden defence of adequate procedures to prevent Campbell (n 134) 61-63. See also Wells (n 134) 6. Further, ILRC Corporate Offences (n 271) 579. It appears that neither are considered to be barriers by the ILRC, which concludes that the reverse onus does not compromise obligations under Article 6 ECHR, see ILRC Corporate Offences 580. 281 ‘The Bribery Act 2010: Post Legislative Scrutiny’ available at www.parliament.uk/business/committees/committees-a-z/lords-select/bribery-act-2010/news-parliament- 2017/bribery-act-2010-report-publication/. 31 International and Comparative Law has also proposed a failure to prevent mechanism for corporate human rights harms in the UK.307 In discussions on the EU sustainable corporate governance initiative, it has been recommended that ‘… the [EU] legislation include criminal liability provisions for companies and directors and management that are held responsible in the event of severe violations of human rights.’308 Arguably, extending the successful failure to prevent model to human rights abuses responds to the need for effective mechanisms of remedy, and supports States’ existing obligations to prevent abuses by private actors. In this light, it would work with the thrust of widely accepted international standards such as the UNGPs, developments in HRDD, and litigation in private law.309 The alternative is to default to remedy for business-related abuses relying exclusively upon voluntary implementation, and claimants bearing the burden of taking challenging litigation within civil law. C.3.2. Approaches to Corporate Civil Liability Foreign direct liability litigation (FDL) seeks judicial remedy in the home states of multinational corporations. The cause of action is within the tort of negligence, underlying which are business-related adverse impacts on human rights, often at a severe level.310 These cases are based upon the principle that a parent company may owe a duty of care to those impacted. To the authors knowledge, litigation of the style discussed in this review has not been commenced in Ireland, although business operating in Ireland are being discussed in connection with abuses overseas.311 For present purposes, it is most instructive to look to the development of FDL ligation in the English courts.312 It offers settled jurisprudence in relevant aspects.313 Further, courts in the EU are generally applying the law of the forum where the harm occurred,314 which in several cases is influenced by English common law.315 In 2019, the UK Supreme Court handed down its judgment in Vedanta.316 It can be expected to provide ‘UK Government pushed to impose a duty to prevent corporate human rights abuse’ (6 April 2017) available at www.herbertsmithfreehills.com/latest-thinking/uk-government-pushed-to-impose-a-corporate-duty-to-prevent- human-rights-abuse. 307 British Institute of International and Comparative Law (BIICL), Peter Hood, Julianne Hughes-Jennett, Dr Irene Pietropaoli, Lise Smit ‘A UK Failure to Prevent Mechanism for Corporate Human Rights Harms’ (February 2020) available at https://www.biicl.org/publications/a-uk-failure-to-prevent-mechanism-for-corporate-human-rights- harms. 308 UN CESCR General Comment No. 24 (n 70) para 15; Draft Opinion of the Committee of Foreign Affairs for the Committee of Legal Affairs (n 170) paras 49-51. 309 Including subsidiaries in the ambit would impact positively on the challenges to accountability of the company law doctrines of separate legal personality discussed in section B.3. 310 See section B.4.1. Given limitations and lack of judgments on the merits, damages are not considered. 311 (n 1). 312 The United Kingdom (UK) is the nearest common law jurisdiction and has commonalities with Ireland of concepts in private law; ‘legal family’; language; socio-economic background in Western Europe; and historical context. The rulings of the Canadian courts in Hudbay, Garcia weigh in precedential value, and Araya is relevant concerning violations by a corporation of fundamental human rights enshrined in customary international law, such as the prohibition against slavery, forced labour, and torture (B.4.2.). 313 Chandler (n 156) (Arden LJ) [69]. The English courts have established that direct parent company liability is distinct from veil-piercing. Vicarious liability has not been oft pleaded in English jurisprudence. 314 Section B.4.2. and B.4.3. 315 Vedanta (SC) (n 158) (Briggs LJ) [44]. 316 (n 158). 32 persuasive authority, and exert influence on the future direction of case law in this field.317 It is established that parent company duty of care extends beyond those with whom the parent has a direct (employer/employee) relationship, to the wider community negatively affected by the operations of subsidiaries. The English courts have shown pragmatism, recognising that there are a range of models of management in multinational corporations which may ground the necessary level of control or intervention by the parent company in the operations of its subsidiaries.318 Further, it was made clear that a corporation which fails to ‘walk its talk’ may be courting legal risks.319 The hurdle of establishing jurisdiction, and joining foreign co-defendants, would face claimants taking an FDL style case in the Irish courts.320 The anchor defendant must be domiciled in Ireland321 to connect a foreign defendant to proceedings in Ireland under Article 8 Brussels I.322 A national court will determine whether to hear the cases against the two parties together,323 with leave to serve the party outside the jurisdiction to be determined under domestic civil procedure rules.324 The inclusion of the anchor defendant ‘must not be a mere device’ aimed at anchoring proceedings before the Irish courts.325 317 The clarification by the UK Supreme Court that parent company duty of care is not a ‘novel’ extension can be expected to render actions based on parent company duty of care more accessible in courts which conceivably may have exhibited reticence to moving beyond established categories in negligence. The ICJ and Core submission into the UK Supreme Court in Okpabi and others v Royal Dutch Shell plc and Shell Petroleum Development Company Limited UK SC 2018/0068 argues that the Court of Appeal erred in it analysis, available at https://corporate-responsibility.org/wp-content/uploads/2020/06/Okpabi-ICJ-and-CORE-submissions-29-05- 2020-for-filing-at-UKSC_23322670_1.pdf. 318 Vedanta (SC) (n 158) (Briggs LJ) [51]. 319 Vedanta (SC) n 158) (Briggs LJ) [53] stating ‘Even where group-wide policies do not of themselves give rise to such a duty of care to third parties, they may do so if the parent does not merely proclaim them, but takes active steps, by training, supervision and enforcement, to see that they are implemented by relevant subsidiaries (...)’ With this statement, it is arguable that corporate policies in areas such as supply chain due diligence and environmental sustainability will be subject to granular examination by the courts. 320 To the author’s knowledge to date there are no cases in Ireland concerning a duty of care on a parent company of the FDL style. See B.4.3. Article 4(1) of the Brussels I (recast) (n 152) was incorporated into domestic law in Ireland via The European Union (Civil and Commercial Judgements) Regulation 2015 SI No. 9, 1-117. Jurisdiction over EU domiciled defendants is mandatory in Ireland Abama v Gama Construction Ireland Ltd [2011] IEHC 308 (Dunne J) [32], [2015] IECA 179 (Peart J) [40]. See also Hilary Biehler, Declan McGrath and Emily Egan McGrath, Delany, and McGrath on Civil Procedure (4th edn, Thomson Reuters Ireland 2018), 1-91 and 1-94. 321 Under the RSC Order 11A, Rule 10 is to be determined in accordance with the provisions of Articles 62 and 63 of Brussels I (recast) or the Lugano Convention. 322 Brussels I (recast) (n 152) Art 8(1). 323 See Case C-98/06 Freeport [2007] ECR I-08319; C-616/10 Eva Maria Painier v Standard VerlagsGmbH (2011) STJUE; Case C-352/13 Cartel Damages Claims Hydrogen Peroxide [2015] EU: C:2015:335. See also Delany and McGrath (n 320) 1-269; 1-272 to 1-276. On the risk of irreconcilable judgments, see Vedanta (SC) (n 158) [79]. 324 Rules of the Superior Courts (RSC) (Jurisdiction, Recognition and Enforcement of Judgments) 2016 SI No. 9. In a typical FDL case taken in Ireland, the provisions of RSC Order 11 would apply. available at www.irishstatutebook.ie/eli/2016/si/9/made/en/print. On the operation of Order 11 Rule 1 see Vodafone GmbH - v- IV International Licensing and Intellectual Ventures II LLC [2016] IEHC 321 deriving a set of common principles from Grehan v Medical Incorporated (Grehan) [1986] IR 528, 541, Analog Devices BV v Zurich Insurance Co. [2002] IR 272, 281, and O’Flynn v Carbon Finance Ltd. [2015] IECA 93. See also Delany and McGrath (n 320) 1-25;1-136. 325 Delany and McGrath (n 320) 1-69. Vedanta (SC) (n 158) (Briggs LJ) [23] considering that only if the ‘sole purpose’ of proceedings against the anchor defendant was to attract jurisdiction against the foreign defendant, would it constitute an abuse of EU law 33 In FDL style litigation in Ireland, the issue of jurisdiction would be assessed by the courts, inter alia, based on whether the claimants establish an arguable case that a parent company owed a duty of care.326 In assessing such a claim, Irish courts may consider the approach taken by the English courts. In Vedanta, the UK Supreme Court clarified that parent company duty of care is not a ‘novel’ extension, and that the general principles of tort law apply.327 On balance, this may render actions based on parent company duty of care more accessible to courts which may have hesitated on extension to new categories within negligence. The question of whether access to justice is available in the alternative forum, typically the place where the subsidiary is located, has weighed in FDL litigation. In cases in other jurisdictions, the approach of the judiciary has proven to be influential regarding the risk of denial of access to justice for claimants. Arguably, the approach of considering access to justice as ‘separate and distinct’ from the connecting factors to the alternative jurisdiction is ascendant.328 Even on the basis that FDL style litigation may be substantively feasible in Ireland, procedural and practical circumstances remain significant barriers.329 Another factor which may be considered, is the potential influence of the Irish Constitution.330 C.4. The Irish Constitution The Irish Constitution may positively impact upon remedy for business-related abuses. Potentially, this could relate to the influence of the Constitution upon shaping tort law, via an action for infringement of a constitutional right, or in supporting the right of access to the courts.331 On the basis that ‘central to our understanding of the aims of [Irish] tort law is the Constitution’,332 it is arguable the Constitution may bear influence on the scope of duty of care in eventual FDL cases.333 The Constitution is based on 326 Ward v McMaster [1985] I.R. 29; John Tully, Tort Law in Ireland (Clarus Press 2014), 10. The elements of negligence are the existence of a duty of care, and breach causing harm. The test of duty of care as formulated by Keane CJ in Glencar Exploration plc v Mayo County Council [2002] 1 I.R. 84 [139]; Ennis v Health Service Executive [2014] IEHC 440 [64] (Hogan J) [85] referring back to according to the principles in Dorset Yacht Co. Ltd. v. Home Office [1964] A.C. 1004. 327 Vedanta (SC) (n 158) [54]. 328 Vedanta (SC) (n 158) [88]; (Briggs LJ) [11] emphasised, the risk substantial justice is not available in an alternative jurisdiction is the exception, and as such a finding may affect international comity it merits attentive scrutiny and requires cogent evidence; Garcia (n 162) [30], [128]-[129]. On art. 6(1) ECHR see Naït-Liman (n 166). See also Augenstein, ‘Torture as Tort? (n 125) 610 stating ‘where the victim faces a flagrant denial of justice or where instituting civil proceedings in another state does not constitute a reasonable alternative, a domestic court’s decision to decline jurisdiction can amount to a violation of Article 6 of the ECHR (forum necessitatis jurisdiction).’ Widdis (n 6) chapter 6 forwards that it may be considered that the rights violations which underpin FDL cases merit such judicial discretion in the light of natural or constitutional justice. 329 As presented by Widdis (n 6). 330 Donal O’Donnell, ‘International Aspects of the Constitution: Skibbereen Eagle or a shaft of dawn for the despairing wretched everywhere’ (2018) 59 Irish Jurist 5, 9. 331 Widdis (n 6) chapter 6. 332 William Binchy, ‘Tort Law in Ireland: A Half Century Review’ (2016) 56 Irish Jurist 199. 333 Carr v Olas [2012] IEHC 59 Hogan J [36]. See also Alistair Richardson ‘Lateral Thinking: Justifying the Horizontal Application of Constitutional Rights’ (2018) 21 Trinity College Law Review 159, 162. In South Africa, the constitutional court has clarified the process of grafting constitutional normative values onto the customary process of incremental development of the common law, including when new development of the common law is at issue 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) [17]. 36 due in 2020.358 This Review is being undertaken by an expert group, chaired by the former President of the High Court, Mr. Justice Peter Kelly, and is tasked with making recommendations for changes with a view to improving access to civil justice in the State, promoting early resolution of disputes, reducing the cost of litigation, creating a more responsive and proportionate system, and ensuring better outcomes for court users.359 As it stands, Ireland remains outside the 2013 EU Recommendations on collective redress.360 To ensure the right to remedy, a fit for purpose mechanism for collective actions is required. This may encompass a set of approaches which balance the need for access to justice and efficiency, whilst deterring abusive litigation.361 Notably, there is a marked disparity between provision in the UK and in Ireland. Collective redress is well established in the UK and the mechanisms available there are broadly consistent with the EU Recommendation.362 For present purposes, the significance is the positive impact of collective redress mechanism upon access to justice in the UK, including for litigation with a cross border element.363 C.5.2. Financial Barriers The constitutional right to access to a court to vindicate a legal right is one of the personal rights under Article 40.3º of the Irish Constitution.364 However, it is arguably not ‘effective in practice’ unless there are means of funding litigation. Even with a fit for purpose mechanism of collective redress, victims 358 Minister of State at the Department of Health Deputy Catherine Byrne Dáil Deb 14 November 2014 available at www.oireachtas.ie/en/debates/debate/dail/2017-11-14/35/. 359 See https://www.oireachtas.ie/en/debates/question/2019-11-26/250/; http://www.civiljusticereview.ie/; http://www.justice.ie/en/JELR/Pages/PR17000097. 360 Commission Recommendation 2013/396/EU of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law [2013] OJ L201/60 available at https://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32013H0396&from=EN ; Communication to the European Parliament and Council, ‘Towards a European Horizontal Framework for Collective Redress’ COM (2013) 401/2; ‘Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the implementation of the Commission Recommendation of 11 June 2013 (2013/396/EU) COM/2018/040 final 1 available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2018:0040:FIN; BIICL (n 352) 195. See also CM/Rec(2016)3 (n 46); EU FRA (n 50) Opinion (n 1). 361 Blennerhassett (n 349) 36 and 51, arguing that MPAs are a ‘remedy of last resort’, and are not the most efficient route to justice, and that alternative mechanisms of achieving redress, inter alia, regulatory redress and consumer Ombudsmen should be examined as part of the development of a suite of mechanisms. See Widdis (n 6). 362 UK Civil Procedure Rules 19.11 Parties and Group Litigation (1). Practice Direction 19B provides the procedure for applying for a GLO) available at www.justice.gov.uk/courts/procedure- rules/civil/rules/part19#19.11; See also BIICL (n 352) 971. The UK offers an opt-in collective redress mechanism for victims of mass harm, including non-residents, to claim injunctive relief and compensatory damages. Sector specific regimes are also available in UK Competition and Consumer law. See also Blennerhassett (n 349) 45-46. 363 The BIICL (n 352) 267 study highlights the weight of cross border claimants in proceedings in the UK. EU FRA (n 18) 3 findings indicate prospect of a favourable outcome appears to be lower in such cases, particularly where cross-borders reaching outside the EU. EU FRA (n 50) stating: ‘Procedural rules need to allow for collective redress, as well as representative action in business and human rights-related cases’. 364 Macauley v Minister for Posts and Telegraphs [1966] IR 345, 358 37 will remain unable to access remedy unless it is possible to access funding.365 This Review concerns potential victims overseas, and it is not assumed that claimants are domiciled in an EU Member State.366 The general principle concerning litigation taken in Ireland is that ‘costs follow the event’, risking a double financial burden on the unsuccessful party.367 Civil legal aid is specifically excluded within the existing mechanisms of test cases and representative actions.368 Further, the wording of the Civil Legal Aid Act 1995 is interpreted to prohibit the provision of legal aid in Multi-Party litigation.369 The right to legal aid is enshrined in art 6(3)(c) ECHR and art 47 CFREU.370 In alternatives, as Bacik and Rogan advocate, Protective Costs Orders which are utilised in Ireland concerning environmental cases, would at least provide certainty at the outset of litigation.371 A recent decision of the High Court in Friends of the Irish Environment CLG v Ireland and the Attorney General (FIE) ruled that civil legal aid can only be granted to ‘natural persons’, excluding ‘legal persons’, such as NGOs.372 The court concluded that the case was not made that a lack of civil legal aid made it impossible for the applicant to exercise its right of access to the court or that it was denied an effective remedy.373 Conditional Fee Arrangements are permitted for the deferral of legal fees, but contingency fees relating to a proportion or percentage of awards are not legal.374 After the Event insurance appears to be a legitimate means of third-party 365 BIICL (n 352) 685 ‘the lack of possibility to fund it would usually prevent initiation of such proceedings.’ 366 See Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes, available at https://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02003L0008-20030131. See also European Commission advice on legal aid in Cross border disputes available at https://e-justice.europa.eu/content_legal_aid-37129- en.do. See also FLAC stating ‘A person living abroad who has a case in Ireland for which he/she is seeking legal aid and advice must meet the financial means test of the Irish Legal Aid Board or of his/her own country. The appropriate body will then identify if he/she meets the Irish merits test and if so, will allocate representation. Information and forms on cross-border legal aid are available at http://bit.ly/crossborderlegalaid’ available at https://www.flac.ie/assets/files/pdf/civil_legal_aid_guide_final.pdf. 367 Under the general rules set out in Court Order 99 of the RSC 1986 www.courts.ie/rules.nsf/8652fb610b0b37a980256db700399507/a55af2a6669ec72180256d2b0046b408. 368 Section 28(9)(a)(ix) of the Civil Legal Aid Act 1995. See Bacik and Rogan (n 369). 369 FLAC ‘Submission on the Multi Party Actions Bill to the Select Committee on Justice and Equality, (February 2018) available at www.pila.ie/download/pdf/submission_to_joc_mpa_bill_2017.pdf. The LRC Multi-Party Litigation (n 356) para. 3.49 recommended that the Civil Legal Aid Act 1995 be amended to make provision for the funding of an otherwise eligible group member for his or her proportion of any eventual costs order. 370 See European Commission advice on legal aid in Cross border disputes available at <https://e- justice.europa.eu/content_legal_aid-37129-en.do stating ‘The right to legal aid is enshrined by: the European Convention on Human Rights (ECHR) - Article 6 (3)(c) of the ECHR guarantees the right to legal assistance where the defendant has insufficient means to pay for legal assistance, and to get free legal aid when the interest of justice so requires; the Charter of Fundamental Rights of the European Union - Article 47 of the Charter stipulates that legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ 371 Ivana Bacik and Mary Rogan (eds) Legal Cases that Changed Ireland (Clarus Press 2016) 124 re Aarhus Convention. See also Blennerhassett (n 349) 43. 372 https://www.courts.ie/acc/alfresco/fe3f46ca-1aab-4a57-9c49- 0aeeb6ad6d3c/2020_IEHC_454.pdf/pdf#view=fitH. 373 FIE argued that Article 47 of the CFREU on the right to an effective remedy and Article 9(4) of the Aarhus Convention imposed an obligation to interpret the 1995 Act so as to include legal persons See https://www.pila.ie/resources/bulletin/2020/09/30/irish-high-court-rules-civil-legal-aid-can-only-be-granted-to- natural-persons-not-ngos/. 374 Blennerhassett (n 349) 43. 38 funding litigation in Ireland.375 For present purposes, it is anticipated that claimants who are not domiciled or habitually resident in Ireland will face funding barriers in cross border litigation. By comparison, claimants in the English courts in FDL type litigation have been able to leverage innovative solutions to fund litigation in order to sustain access to justice.376 Unlike in Ireland, funding of litigation by third parties is possible.377 To fund large cases litigators can access investors who are willing to fund litigation. Notably, the BIICL study found that the general view of third party funding in the UK was favourable, and no practical problems with the functioning of the system are apparent.378 In Ireland, procedural and practical barriers recall the words of Walsh J, thirty years on, that ‘One of the fundamental political rights of the citizen under the Constitution, indeed one of the most valued of his rights, is that of access to the courts (…).379 The ban of third party funding of litigation was upheld by the Irish Supreme Court in Persona Digital Telephony Limited Sigma Wireless Networks Limited v The Minister for Public Enterprise Ireland and The Attorney General and Denis O’Brien and Michael Lowry.380 Notwithstanding, the judgments infer developments facilitating access to remedy may potentially be anticipated.381 As Clarke J stated in this case: The constitutional right of access to the court may include an entitlement that that right be effective, not just as a matter of law and form, but also in practice382 The Court noted that the fundamental importance of access to justice would merit consideration of legislation to enable third party funding of litigation by parties with a legitimate interest in the proceedings.383 Should the failure to advance legislative provision persist, the possibility that the courts 375 Greenclean Waste Management Ltd v Leahy [2015] IECA 97. In Greenclean Waste Management Limited v Maurice Leahy (2014) IEHC 31, Hogan J expressed the view that the ATE policy was not champertous. Further at [27], that ATE insurance is a legitimate service, which facilitates ‘access to justice for persons and entities who might otherwise be denied this’, and [23] access to justice is ‘a constitutional fundamental’. 376 Access to civil legal aid in early cases in the English courts was no longer available by 2000. Under the Access to Justice Act 1999, ATE insurance and CFAs were introduced, enabling funding FDL litigation via cost recovery from the defendant. Subsequently, the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) negatively impacted access to justice, particularly in claims relating to environmental damage, a situation exacerbated by the operation of Rome II. See BIICL (n 352) 363; LRC Multi-Party Litigation (n 356) section 3.59; Meeran (n 157) 381. 377 Criminal Law Act 1967 abolished the crimes and torts of maintenance and champerty in England and Wales. 378 ‘Minor concerns’ were raised regarding regulation and control. See BIICL (n 352) 19, 195, 269. 379 Society for the Protection of Unborn Children v Coogan [1989] IR 734,744. 380 [2017] IESC 27 Persona (SC). The Court upheld the crimes and torts of maintenance and champerty. Denham CJ defined Maintenance as ‘the giving of assistance, by a third party, who has no interest in the litigation, to a party in litigation; Champerty is where the third party, who is giving assistance, will receive a share of the litigation succeeds’. Both were abolished in the UK in 1967. 381 See Hilary Biehler, ‘Case Comment Maintenance and champerty and access to justice - the saga continues’ (2018) 59 Irish Jurist 130, 138; Widdis (n 6) chapter 6. 382 Persona (SC) (n 380) (Clarke J) [2.6], [2.8]-[2.9]. At [36] in agreement, McKechnie; Also, McKechnie J [48]. 383 Via constitutional challenge, or legislative reform. Denham CJ [18], [52], [54 (v)-(vi)]. See ILRC Contempt of Court and Other Offences and Torts Involving the Administration of Justice (LRC IP 10-2016) para 6.33. 41 Noting that although some Irish companies have moved to adopt Modern Slavery style statements, well- founded criticism levelled at the operation of the Act407 infers that the adoption of similar legislation in Ireland would not be a route to pursue.408 As the Baseline Assessment states: ‘For the [Irish] State to continue to develop its strong reputation in the protection of human rights it is suggested that consideration ought to be given to the adoption of mandatory human rights due diligence.’409 It identifies the 2017 French Duty of Vigilance Law as an example of legislation that could be followed in Ireland.410 This Review recognises the French Law to be apt in requiring the elaboration and disclosure of a Plan, which must be effectively implemented.411 A similar ‘Strategy’ and ‘Report’ structure is adopted by the Committee of Legal Affairs in its advice to the European Parliament.412 To progress, it is recommended that the onus be on the organisation to prove that it has complied with provisions.413 The French Law is home state regulation with extraterritorial effect.414 The duties under the Law apply to French companies in respect of their own activities, those of companies they control, and of suppliers and contractors with whom they have an ‘established commercial relationship.’415 Companies coming under the French law which fail to fulfil their obligations risk penalties and civil suit,416 with widely conceived standing.417 Similarly, regulation should specify a legal duty of care and 407 See, ‘Promoting responsibility and ensuring accountability’ (n 306). 408 See LeBaron and Rühmkorf (n 188); Modern Slavery Reporting: Is there Evidence of Progress?” Ergon Associates, October, 2018, 21 available at https://ergonassociates.net/wp- content/uploads/2018/10/Ergon_Modern_Slavery_Progress_2018_resource.pdf?x74739; NYU Stern Center for Business and Human Rights, ‘Research Brief: Assessing Legislation on Human Rights in Supply Chains: Varied Designs but Limited Compliance’ (June 2019), available at: https://bhr.stern.nyu.edu/blogs/2019/6/19/research- brief-assessing-legislation-on-human-rights-in-supply-chains. 409 Baseline Assessment (n 2) 20, 52. 410 ibid Summary of Recommendations, 52. See also Sherpa Vigilance Plan Reference Guide 37-38 available at https://www.asso-sherpa.org/vigilance-plans-reference-guidance-legal-analysis-on-the-duty-of-vigilance- pioneering-law. 411 (n 65) art.1, para 3. Paras 4-9 indicate five types of measures that the Plans shall contain, interpreted as an indicative rather than exhaustive checklist. The duty is two-fold a) legal duty and b) compliance duty, arts 7 and 9. See Tiphanie Beau de Loménie et al, ‘The French Law on Duty of Vigilance’ in Angelica Bonifanti (ed), Business and Human Rights in Europe: International Law Challenges (Glawcal 2019). See Stéphane Brabant and Elsa Savourey, ‘France’s Corporate Duty of Vigilance: What Penalties are Businesses Likely to Face’ available at www.herbertsmithfreehills.com/latest-thinking/frances-corporate-duty-of-vigilance-law-what-penalties-are- businesses-likely-to-face. 412 (n 170). 413 Sherpa (n 410) the burden of proof in the French law is an issue. Companies are only liable if they fail to show that they have implemented the ‘reasonably assessed’ measures to a) prevent adverse human rights impacts and b) provided avenues for remedy. Landau (n 186) 221-247. 414 See section B.3.1; See ECCJ legal brief available at https://corporate-responsibility.org/wp- content/uploads/2019/10/2020-Legal-Brief.pdf. See also Baseline Assessment (n 2) 24, ‘Under the Companies Acts, or other Acts of the Oireachtas, Ireland has not imposed specific human rights obligations on companies with regard to their subsidiaries outside the jurisdiction.’ 415 Sherpa Vigilance Plan Reference Guide (n 410). 416 Duty of Vigilance law (n 65) art. 2. 417 Any person whose human rights are allegedly affected as a result of a lack of vigilance has standing to bring a civil claim against it before French courts, including victims, NGOs, trade unions and competitors. 42 provide for sanctions linked to civil remedy, with standing widely conceived. Appropriate provision in criminal law is advised for consideration. The French Law, which is based upon large numbers of employees, is expected to apply to only c.100/150 of France’s largest companies.418 Recalling that HRDD processes are expected to be proportionate and flex relative to size, but address the scale, nature and irremediable character of risk. Alternatives may include initiating regulation for SMEs in risk sectors, as provided in the legislative proposal in Germany419 and Switzerland;420 including companies above a certain combined threshold as in the German proposal;421 or at a deferred time-defined date. Specific provision could be made for incentives to companies as in the French law, combined with provisions for exclusion from government contracts, trade and investment supports.422 While limits preclude elaboration, assessment of additional potential costs423 and studies regarding benefits to business of mandatory HRDD are noted.424 To be effective, (Board level) committee oversight of implementation,425 an engaged regulator, and enforcement of provisions is required. Consideration of the interaction with Company Law and Directors Duties is recommended. To counteract the risk of a ‘process’ approach and to assist compliance, a high standard of accountability in conjunction with a formal transparency requirement is advised.426 Consultation with stakeholders is identified as a key part of the process and is recommended.427 In particular, provision should be made for open and on-going consultation with those who may be disproportionately affected or face additional barriers.428 A key recommendation of the UNWG is the 418 The law only covers companies that have their registered office in France and employ at least 5,000 employees within their company and subsidiaries in France, or at least 10,000 employees within their company and subsidiaries in France and abroad. See Sandra Cossart, Sherpa, ‘What lessons does France’s Duty of Vigilance law have for other national initiatives?’ (27 June 2019) available at <https://www.business- humanrights.org/en/what-lessons-does-frances-duty-of-vigilance-law-have-for-other-national-initiatives. 419 See ‘Legislative Proposal: Corporate responsibly and Human Rights: Legal Text and Questions and Answers on the Human Rights Due Diligence Act proposed by German NGOs’ available at https://corporatejustice.org/news/mhrdd_lawproposal_and_faq.pdf; 420 Swiss Coalition for Corporate Justice ‘The Initiative Text with Explanations’, available at: https://corporatejustice.ch/wp-content/uploads//2018/06/KVI_Factsheet_5_E.pdf. 421 For example, based on employees, turnover and balance sheet. 422 UN CESCR General Comment No 24 (n 70) advised States to ‘consider measures including; revoke business licences and subsidies, from offenders; and revise relevant tax codes, public procurement contracts, export credits and other forms of State support, privileges and advantages in case of human rights violations.’ 423 EU (2020) ‘Study on due diligence requirements through the supply chain’ (n 36), 428-430. 424 Inter alia, E & Y https://www.ey.com/Publication/vwLUAssets/EY-building-responsible-and-resilient- supply-chains/$FILE/EY-building-responsible-and-resilient-supply-chains.pdf. 425 Committee of Legal Affairs (n 170) Article 1; Article 12. 426 Landau (n 186) ‘234; McCorquodale et al (n 14); ECCJ (n 64). 427 UNGP 18 (b); OECD Guidelines,; ILO Tripartite Declaration; A/HRC/38/20/Add.2 (1 June 2018) para 8; Committee of Legal Affairs (n 170) Article 5. 428 Committee on CRC, General Comment No 16 (n 98). EU FRA (n 50) Opinion 5; A/72/162 (n 40) para 25.Responsible Business Conduct Working Group, ‘Shadow EU Action Plan on the Implementation of the UN Guiding Principles on Business and Human Rights within the EU’, 6 (March 2019) available at https://responsiblebusinessconduct.eu/wp/wp-content/uploads/2019/03/SHADOW-EU-Action-Plan-on- Business-and-Human-Rights.pdf. See also Committee of Legal Affairs (n 170) para 39 and 40. 43 integration of a gender perspective in due diligence regulation.429 It should, throughout, include consultation with inter alia, representatives of women workers, gender experts, and representative organisations, and be gender responsive in design and related provisions.430 D. CONSULTATION D.1. Feedback Welcome and valuable written feedback on the Draft Review was received from 4 State Departments, 2 State agencies, IHREC, the National Contact Point, and 1 civil society organisation. It is hoped that the feedback is considered in the body of this Review and reflected as appropriate. D.2. Consultation A sample of 83 relevant stakeholders were invited to participate and to share their views; including 21 publicly listed trading companies domiciled or headquartered in Ireland; 4 large trading privately held companies domiciled or headquartered in Ireland; 4 state owned companies; 22 NGO, civil society and representative organisations; 4 associations representing business, including small businesses; 2 trade unions; 7 corporate law firms; 2 firms of solicitors; 3 State departments and 14 other stakeholder or public service entities. Consistent with its terms, the commercial entities are mainly large operating enterprises with supply chains overseas. Contact with the 83 relevant stakeholders was initiated by the Department of Foreign Affairs and Trade. The consultation document was sent by the independent consultant, and on average followed up twice by the consultant. Additional follow up requests to participate were made by the Department of Foreign Affairs and Trade. It is plausible that the relatively new nature of remedy related to operations overseas, and the timing during the global COVID-19 pandemic with associated impacts, may have restrained the level of participation. The responses received were of great value in insights for this Review, and appreciated. The consultation was in confidence. In light of the small size of the sample, it was indicated prior that insights from responses would be reflected generally. All questions were optional, and not all respondents answered all questions. Several respondents added reflections and further information which offered insights into the mechanisms, policies and provisions currently in place in Ireland. The following reflections are observations on the responses, with the caveat that the number of responses is 19, and it is not purported that specific or definitive conclusions are drawn. Of the 19 respondents,431 429 A/HRC/41/43 (n 8). See also Kelly Groen and Lis Cunha of Action Aid, ‘Due diligence laws must not leave women behind’ BHRCC (25 June 2019) available at https://www.business-humanrights.org/en/due-diligence- laws-must-not-leave-women-behind. 430 See Joanna Bourke Martignoni and Elizabeth Umlas, ‘Gender-Responsive Due Diligence for Business Actors: Human Rights-Based Approaches’ Geneva Academy, Academic Briefing No 12 (December 2018), 26 available at https://www.geneva-academy.ch/joomlatools-files/docman-files/Academy%20Briefing%2012-interactif- V3.pdf. See generally https://www.ohchr.org/EN/Issues/Business/Pages/GenderLens.aspx; 431 Dr Widdis was available to explain further, and telephone/zoom calls were arranged on request. 46 E. CONCLUSIONS The adverse impact of business on human rights and the environment is a global societal issue. Gaps in governance, regulation, and access to remedy across national and international levels propagate a context in which adverse impacts occur and will recur. This is a fast-evolving environment posing challenges to stakeholders, policy makers, regulators, and actors in business and law. To address it, the challenges include recognising barriers to remedy for rights holders, building capacity, developing effective mechanisms of accountability, and changing behaviour. The approach taken to date has been primarily voluntary implementation of initiatives, such as the UN Guiding Principles on Business and Human Rights (UNGPs). Globally, businesses are just beginning to implement these initiatives, if at all. Implementation is assessed as low and slow. Other reporting and ‘single issue’ regulatory initiatives have recognised shortcomings, for example, the UK Modern Slavery Act. There is realisation that voluntary modes and means, alone, are no answer to the magnitude of continuing harms to rights holders. The UNGPs have considerable and undoubted value, and continuing implementation remains crucial. However, they were conceived as part of a ‘smart mix’ of voluntary and instrumental measures. Significant additional and intersecting barriers to accessing appropriate and effective remedies are faced by women and groups which have been marginalised. There is a clear need to focus on transformative remedy. The experience of rights holders should inform the design of remedy. The participation of women in the development of gender transformative remedies, including gender responsive human rights and environmental due diligence should be ensured. This human context, the status of human rights, and existing barriers to remedy support facilitating civil remedy in domestic legal systems, including consideration of specific provision regarding jurisdiction and applicable law for business- related impacts. Judicial remedies are most frequently sought. Underlying on-going cases in the UK, Netherlands and Canada are allegations including rape, torture, killing, slave labour, and environmental pollution causing damage to livelihoods and health. Litigation against multinational corporations in their home states continues to grow. Jurisprudence in the English courts spanning thirty years may be considered to offer persuasive precedent for other jurisdictions, including potentially in Ireland. Seeking judicial remedy for business-related harms is arduous and costly, particularly so in light of the barriers to access to information, funding, and expertise, as well as barriers of circumstances, geography, and language of the claimants typically involved in litigation. In other jurisdictions, there are frequently thousands of claimants in a single case. In Ireland, there are procedural barriers to eventual cases, including lack of a fit for purpose mechanism for collective redress. Practical barriers to remedy include substantial legal costs and lack of mechanisms to reduce costs. Judicial remedy for victims overseas may be substantively feasible, yet impossible in practice on the basis of procedural and practical barriers. Proactive measures are recommended to reduce barriers, and make available 47 remedies to rights holders to the international standard of: Accessible; Affordable; Adequate; and Timely. Summary Comparison UK IRELAND The risk of denial of justice has weighed in litigation in other jurisdictions. Any state is able to enact regulations which oblige corporations linked to it to respect human rights wherever they operate, and can equally provide practical supports for litigation, access to information, and support non-judicial remedies. The expert Review of the Administration of Civil Justice, commissioned by the Irish Minister for Justice, is pending. Appropriate criminal offences should work in tandem with civil causes of action in ensuring remedy. The systemic barriers to accountability in criminal law are prompting new approaches. Well- constructed failure to prevent offences are proving effective. It may be considered to introduce an offence based on primary liability of the corporate entity for failure to prevent human rights abuses, including an appropriately designed defence of due diligence. State based non-judicial mechanisms have an important role to play in remedy, and which could be enhanced in the Irish context. Given the costs associated with formal judicial mechanisms, means and resources to engage in voluntary resolution and mediation would be valuable. The Peer Review of the Irish NCP is positive, and it is hoped that its impact will be enhanced. Investment in access to information, visibility, and transparency is advocated. There is momentum for mandatory human rights and environmental due diligence. A substantive model is advocated. The structure of the French Law of 2017 is considered an appropriate starting point, to be adapted in aspects. Scope, in particular the position of SMEs, is recognised to require attention and balanced consideration. A full regulatory assessment, including consideration of incentives, links to State supports, and provision of appropriate supports for SMEs should precede. Full and open consultation with stakeholders is recommended. The process can be expected to be engender debate and to take time, rendering it logical to commence. Proposals are under development in a number of European countries. In Ireland, the Irish Coalition for Business and Human Rights is developing an outline legislative proposal.  Collective Actions Yes (GLOs)  Third party funding Yes (1967)  Modern Slavery* Yes 2015  Failure to Prevent Yes (2010)  FDL style litigation Yes (1998)  FDL litigation feasible Yes  Judicial support Yes  EU Recommendations Yes  Constitution No * Extensively critiqued  Collective Actions No  Third party funding No  Modern Slavery No  Failure to Prevent Yes (2018)  FDL style litigation No  FDL litigation feasible* No  Judicial Support ?  EU Recommendations No  Constitution Yes * Procedural and practical barriers 48 The proposed EU legislative initiative concerning Sustainable Corporate Governance including human rights due diligence is in progress. The open public consultation on the proposal for a Directive states: This initiative aims to improve the EU regulatory framework on company law and corporate governance. It would enable companies to focus on long-term sustainable value creation rather than short-term benefits. It aims to better align the interests of companies, their shareholders, managers, stakeholders and society. It would help companies to better manage sustainability-related matters in their own operations and value chains as regards social and human rights, climate change, environment, etc.433 F. SUMMARY OF RECOMMENDATIONS General • Recommendations are subject to appropriate evaluation and assessment of regulatory impact • Recommendations are pending the Review of the Administration of Civil Justice • Principles of proportionality, and full and prior consultation with stakeholders. • To progress, it is crucial that all stakeholders are fully consulted, engaged, and dialogue is enhanced. • The experience of rights holders should inform how remedies are provided • In all steps, gender dimensions should be considered • To include the recommendations within this Review within the National Plan on Business and Human Rights, including identifying actor(s) responsible and timeframes for their achievement 1. Reduce Barriers to Remedy: Legal, Procedural and Practical • Address barriers to remedy for victims overseas for adverse impacts caused by or contributed to by corporations domiciled in Ireland, including by rendering judicial remedy more accessible, ensuring sanction in criminal law, and enhancing the impact of State based non-judicial mechanisms 2. Jurisdiction and Applicable Law • Consider recommendations on appropriate and proportionate approaches within European regulation relating to jurisdiction for business-related harms, which operate in combination with national rules on jurisdiction, and the exercise of judicial discretion. 433 https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12548-Sustainable-corporate- governance. 51 11. Capacity and Resources: Move the Dial • Dedicated resource in one State agency to establish and maintain: • A Central Digital BHR Information Hub providing up to date and expert information on: evolving standards and State supports; links to sectoral and country specific studies; ‘how to’; best practice; FAQ; blog. Focus on rights holders: gender dimensions; indigenous peoples; human rights defenders. Remedy: Judicial; State based non-judicial; Mediation; Remediation. Understanding Human Rights and Environmental Due Diligence and the EU legislative Sustainable Corporate Governance initiative • A Central Training Hub providing capacity building and knowledge transfer adapted to assist actors in practice • Establish a dedicated SME portal to provide: a forum for dialogue and knowledge transfer: hear and consider the specific challenges of small and medium sized businesses relating to developments this field; and inform the supports which may be required 12. National Plan on Business and Human Rights 2021-2024: Step Change • Content grounded in rights and obligations underpinning business and human rights. • A directional and unifying force containing firm messaging and concrete time defined actions • A clear programme of work to move each objective forward, attributing achievement of each action point to an identifiable and accountable actor • Incentivise implementation of content, links to public procurement, and State supports. • Include the recommendations within this Review in the next Irish National Plan on Business and Human Rights, including actor(s) to advance, and timeframes for their achievement For Further Analysis • Financial Institutions. Specific consideration of business and human rights via investments. • Consider a study of the interaction of these recommendations, and the field of business and human rights with Company Law and Directors Duties, including in relation to human rights and environmental due diligence. • Consideration of the role of a regulator or enforcement body (BHR/HRDD) • Consideration of the Business and Human Rights Implementation Group, perhaps having regard to a programme of time defined outputs, enhancing its visibility and impact • Consideration of a package of incentives for business to respect for human rights, and rendering state supports subject to respect for human rights 52 Appendix I: Feedback – with thanks to Department of Enterprise, Trade and Employment Department of Finance Department of Justice Department of Employment Affairs and Social Protection Enterprise Ireland Industrial Development Authority (IDA) Irish Business and Employers Confederation National Contact Point Trócaire Respondents – with thanks to The respondents which gave their consent to be listed are: Action Aid Total Produce plc Central Bank TerraJusta EIRGRID William Fry Electricity Supply Board Front Line Defenders Irish Centre for Human Rights Irish Congress of Trade Unions Irish Human Rights and Equality Commission Institute of Public Administration NTMA as manager of the Irish Strategic Investment Fund Kenmare Resources plc Kerry Group plc NTR Asset Management DAC Oxfam Primark Limited Shift