030440 KU Business and Human Rights and Corporate Social Responsibility (2020S)

The course will deal with the relationship between transnational corporations and human rights. It will address existing soft law instruments, for example the Ruggie Principles and Corporate Social Responsibility Requirements, as well as issues concerning jurisdiction and alternative dispute resolutions in case of human rights violations by transnational companies. Moreover, questions of international private law and conflict of law in the context of private claims raised by victims of human rights abuse by businesses will play a role.

1) The hypotheticals - Definitions - The notion of value chains and difficulties of the "group of companies" concept. How this will impact the regulation of the issues. Most of cases we have experienced do put in question the "group of companies" concept and put into question the way we define "nationality" or "domicile" for a corporation. This may be a difficult class to start with but it is difficult to avoid and since we will be looking at real cases, students should have concrete facts to help them understand what we are talking about.

2) Review and discussion of all the norms existing (Ruggie Principles and OECD Principles etc.). Here I would have some development on the history in the UN about a code of conduct for transnational corporations and the reasons why it failed. The Ruggie method of negotiation. Comparison with the ECD process. The coordination between Ruggie and the OECD team that lead to the 2011 reform of the OECD Principles and the inclusion of a HR Chapter in the Principles. The second part of the session would be devoted to the discussion of the hard law/soft law issue. This is a very rich issue, not special to this area but it is always good to revisit a general issue in light of a special example.

3) Relation between Investment Law and CSR - Should we insure that the investment is made and conducted in conformity with CSR requirements ? How do we do that? What are the consequences if it is not. This session would be based on one or two awards (perhaps you can suggest what would be the best awards). This session will allow the class to review the usual silo thinking and development of the law, each area being regulated separately and decision makers having difficulties deciding cases which are showing overlapping issues. It would allow us to look at the powers of adjudicators.

4) CSR in value chains - specific clauses in contracts. Students would be asked to discuss the drafting of a clause in a specific contract (probably tailored on the Rana Plaza hypothetical). This would be a very interactive class. Students would have to work in teams (is it possible with the number announced? I will definitely limit the students to 40 -- but even 40 is a lot for this method -- I will have o adapt).

5) Violations of HR by companies will result in tort cases. The applicable law conundrum. (This is a Private international law/conflict of laws class - Is this a problem?). I would compare solutions of the Rome II Regulation with the US classic conflict of laws solutions.

6) Finding the proper forum for victims of CSR and HR violations - the role of ADR starting with NCPs

7) Finding the proper forum - The proposal for a new international court justified by the difficulty due to jurisdictional rules. This class will be a mix between jurisdictional rules (a PrIL class) and the discussion of the pros and cons starting a new international court as proposed in Maya Steinitz's book. I would teach this class probably with the UK decisions in the Vedanta case. And then I would ask students to read one or two chapters of Steinitz book.

8) The public policy issue. There is a question (sometimes) whether HR or CSR may be characterized as "public policy" or "jus cogens". The reason I am putting this at the end is that, pp characterization does upset all of the issues above and the role of adjudicators.

9) Wrap up