The High Court of England and Wales in its November 2020 judgment in Municipio de Mariana v BHP Group1 (BHP) declined jurisdiction to hear the case initiated by victims of the Fundão Dam collapse in Brazil on the grounds of abuse of process. The decision raises serious questions about the Court’s willingness to vindicate the fair trial rights of victims of human rights abuses linked to multinational enterprises (MNEs). In this judgment, Turner J also made obiter comments on the possibility of staying the case on application of Article 34 of the Recast Brussels Regulation (Recast Regulation),2 the doctrine of forum non conveniens (FNC), and/or the Court’s case management discretion.

In the waning days of the indelible 2020, China and the European Union (EU) clinched an ‘in-principle’ deal on their Comprehensive Agreement on Investment (CAI).1 After seven years of negotiation, the treaty attracted widespread public scrutiny, partly due to the significant investment flows between China and the EU, although wider considerations are also at play. China’s 2001 accession to the World Trade Organization laid a major building block in the global order. Its economic rise and export growth have provided cheaper electronics, appliances and clothes for global consumers, but also prompted concerns about the environment and implications for jobs and working conditions in deindustrializing countries. This economic reconfiguration has created complex, often tense, relations between China and established powers such as the EU and the United States (US), to which multilateral arrangements have offered only partial responses.2

For the first time in four decades, leading business associations, corporations, and the corporate law and governance community are seriously debating moving beyond shareholder primacy toward some form of ‘stakeholder governance. But the how question unveils significant differences of opinion as well as difficulties. We focus on a pathway that complements the ambition of stakeholder governance, but which current reform proposals have largely overlooked. We draw on practical experience in the field of business and human rights, where leading companies are increasingly embedding human rights due diligence processes into their strategic decision-making. We contend that as human rights due diligence is made mandatory for companies, which it is in a growing number of jurisdictions, including for foreign firms with a significant business presence in them, risks to stakeholders become a material corporate governance issue. That makes it necessary for firms to address stakeholder concerns and to demonstrate that they are, with possible legal consequences for having failed to do where harm occurs. Such changes by themselves may not constitute a full-blown system of multi-fiduciary obligations, but they mark substantial strides on the path toward it, and they are doing it in the relatively near-term.

This article makes the case for a ‘holistic’ approach to human rights due diligence, arguing that such a standard must be interpreted in the light of mutually reinforcing principles of environmental law, climate law and human rights law. Through a review of emerging climate change-related litigation, it shows how a concept of ‘climate due diligence’ is gradually consolidating. Building on the United Nations Guiding Principles on Business and Human Rights, the article explores climate due diligence both as a standard of conduct and as a business process, presenting its main features. It argues that corporations should integrate climate due diligence into their processes and policies to be best prepared for likely regulatory and judicial developments, such as the upcoming European Union’s regulation on human rights and environmental due diligence.

This paper presents an original framework designed to systematize understanding of corporate power over human rights. The framework disaggregates four sites of this power: corporations have direct power over individuals’ human rights, power over the materialities of human rights, power over institutions governing human rights, and power over knowledge around human rights. This disaggregation is derived primarily from the work of Barnett and Duvall and focuses on the effects of corporate activity rather than the Weberian understanding of power as the ability to achieve desired outcomes. The framework captures a broad set of corporate acts based on their (potential) harm to human rights. It is argued that understanding business and human rights through the lens of power can help to advance a more comprehensive account of business impacts on human rights.

This article discusses three questions. First, what drives business to ignore human rights, or even worse, consciously undermine the achievement of human rights? Second, given the state of affairs of business and human rights, why is there not a quick regulatory fix to the problems that we see? Third, in light of the failure of business and of regulation so far, what can be done? The article posits that reform of company law is key to ensuring business respect for human rights, as an intrinsic element of the transition to sustainability. The article outlines how company law can facilitate sustainable business. It concludes with some reflections on the drivers for change that make it possible to envisage that the necessary reform of company law will be enacted.

This article assesses different approaches currently discussed and developed in international human rights and investment law to establish investor obligations. The article begins with a general framework of analysing and comparing these approaches. Next, attempts to include direct obligations of business entities in international human rights treaties are discussed. Despite earlier indications the recent initiative to create a legally binding instrument on business and human rights will most likely not include direct obligations for business entities. Subsequently, the article assesses the development of investor obligations in new international investment treaties and through the interpretation and application of existing international investment agreements. Arguably, the former will not lead to binding obligations in the foreseeable future and the latter rests on methodologically questionable grounds. Consequently, the article suggests that the way forward will require domestic legislation in host and home states to establish investor obligations which can be taken into account when interpreting existing investment treaty clauses requiring the investor to adhere to domestic law. This would reflect recent trends both in investment law reforms as well as the business and human rights movement.

The divide between hard law and soft law approaches to global regulation of corporations in relation to human rights is partly based on empirical assumptions. Taking a step back, we assess the claims concerning the current state of global regulation and political feasibility of hard law approaches. Moving beyond the usual suspects, we map 98 existing standards that regulate corporations and find a great variation in how different sectors treat human rights and accountability issues. Turning to the explanation of the current jungle of global business and human rights regulation, we contrast and test dominant and competing expressive theories with a consequentialist commitment curve, in which corporations and states seek to minimize human rights commitments. We find support for all approaches to regulatory reform, but argue that greater attention should be given to the consequentialist insights, and how political economy can be leveraged to strengthen regulatory outcomes.