On October 28, 2020, third day of the 6th session of the Open-Ended Intergovernmental Working Group on Transnational Corporations, stakeholders discussed Articles 8, 9, 10 and 11 of the second revised UN draft treaty on business and human rights.
(This article only focuses on States’ interventions and does not include interventions by other stakeholders such as NGOs. Proposed amendments below are non-exhaustive.)
Proposed amendments
| States remarks (by order of participation) | Article 8. Legal liability |
| Brazil | The excessive burden upon States may hamper the viability of the implementation. This article should limit its application to matter of civil and administrative liability of legal persons. |
| Russia | Remove ambiguous language “criminal liability” and its equivalent and the overall notion of holding legal persons criminally responsible. §11: “or acts or omissions that constitute attempt, participation or complicity” unacceptable from a legal point of view. |
| Panama | Panama legal system does not provide criminal liability for legal persons. Include reference to age in addition to the gender perspective. |
| Mexico | §7: Delete “factually”. §8: Where abuse of human rights is found, compensation of victims should not be subjected to the adoption or not of measure of due diligence. |
| China | Should respect the judicial sovereignty and legal principle of each State. §6: Delete as it increases burden on companies, especially SMEs. §7: Scope of business relationship too broad and violates the principle of independent corporate personality. §9: Impossible to require States parties to incorporate in their domestic law all international crimes. §10: Delete. |
| Philippines | Should be more specific as when a natural person may incur liability. §6: Replace “may require” by “shall require” to guarantee financial security to claimant in case TNCs cease to exist. |
| Palestine | §4: Notion of criminal liability could be strengthened by providing examples of sanctions. §8: Delete 2nd phrase as it may contradicts with the purpose of the provision. §9: Articulate that liability is also triggered by violations of crimes against humanity, grave violations of human rights and humanitarian law. Add a provision reaffirming the civil and joint responsibility of all companies involved in an abuse or violation. |
| Egypt | Recall the importance to stick to the mandate of the Working group. §9: The issue of criminal liability could prove very complex taking into consideration that many legal system do not provide criminal liability of legal persons. |
| Indonesia | §9: What does “functionally equivalent liability'” mean? |
| States remarks (by order of participation) | Article 9. Adjudicative jurisdiction | Article 10. Statute of limitations | Article 11. Applicable law |
| Brazil | §4: Replace “closely related with” by “directly or clearly connected” §5: Replace by a new § stating that the provisions of article 9 shall take into account the principle of subsidiarity as it’s important to guarantee that only after exhaustion of domestic remedy where they exist, may remedy be sought in different fora where the abuse occurred or where the company is domiciled, in order to avoid forum shopping. | Not convinced of the need for special rules on limitation. | §2: Unreasonable that victims may determine the applicable law as t could lead to forum shopping. |
| Russia | Cannot support the broad scope of jurisdiction. | Strong opposition to the idea of removing statute of limitation for a whole spectrum of actions. | |
| Panama | Should focus on civil cases and add a new article that deals specifically on criminal cases. Implementation of extraterritoriality needs more clarity. Add reference to the principle of forum necessitare. | ||
| Mexico | §1: Add “all produced effect” at the end. §4: Delete “closely” to get rid off any uncertainty. | Reword. | §1: Delete “subject to the following paragraph”, and “substance”. |
| China | Should respect the sovereignty of States and avoid creating universal jurisdiction. §1-2: Too broad. Principle of forum non conveniens should not be disregarded arbitrarily. | §1: Too vague and lacks international consensus. | Civil and criminal litigation should be distinguished. Issue of selecting the applicable law in civil litigation. §2: Weakens the predictability of the text regarding applicable law and imposes legal risk on companies. |
| Philippines | §1: Add “the court where the victim is a national of or domiciled” as one of the competent courts. | §2: Emphasise that matters of remedy and procedure must be governed by the international law of the forum. | |
| Namibia | §1: Consider reinserting the reference to the court where the victims is domiciled. | ||
| Ecuador | Include § on res judicata. | ||
| Chile | §4: Clarify “closely connected”. | ||
| Egypt | §1a: Add “all produced effect” at the end as it allows the exercise of jurisdiction for human rights violations that take place extraterritorially. | ||
| Armenia | §1b: Delete. |
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