Ending Human Rights Abuses in which Companies and States are Complicit
Le professeur Paul Davies commente la récente directive européenne sur le devoir de vigilance et rappelle une chose essentielle : les États ont un rôle à jouer ! À lire : « Ending Human Rights Abuses in which Companies and States are Complicit » (Oxford Business Law Blog, 5 avril 2022).
Extrait
The company’s actions under Arts 6-8 are subject to supervision by authorities (to be established in each Member State, not a Union level), which are to have a wide range of enforcement powers, including the imposition of financial penalties linked to turnover. In addition, those harmed by adverse impacts are to be given a right to sue companies in the courts of the Member States (for damages among other remedies), though it is unclear from Art 22 how far the Member State needs to modify its domestic liability system when transposing that Article.
One way to think about what the above might mean for companies is to ‘stress test’ the provisions in the context of the most distressing, widespread and difficult-to-fix human rights cases which recent litigation around the world has revealed. These are cases where the host state of a multinational’s operations is complicit in the abuses.
In my view, litigation and straight-down-the-line supervisory action are unlikely to bring about a satisfactory forward-looking resolution to these deep-seated problems. If exit is to be a true last resort for companies covered by the proposal, what is needed is an inducement for companies to exercise voice rather than exit. And that voice is likely to have to be, not that of the company alone, but part of a cooperation among the company, the host state, local communities and overseas development agencies. A company playing its part in the cooperation should be granted protection against both litigation and supervisory action. Look as hard as one likes, however, no such safe harbour provisions are to be found in the Commission’s proposal. In fact, Art 18(4) specifically rules out protection against supervisory sanctions and private litigation when the company engages in remedial action after being found in breach. In short, the proposal is a standard, backward-looking set of provisions for imposing liability on companies, not a blue-print for cooperative efforts to end abuses in the future. In the most difficult cases where it is most desirable to alter behaviour, exit is what the Commission’s proposal is likely to induce, with uncertain or no benefits for the victims of the abuses.