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.

The endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs) triggered a remarkable process accelerating the recognition of human rights responsibilities for corporations in law and governance. Perhaps even more important is the emergence of an authoritative narrative on business and human rights (BHR), which arguably has the potential to overcome the often-fragmented approach to global issues. This article discusses the degree to which the BHR narrative has been able to penetrate competing powerful narratives that shape societal and regulatory responses. To what extent is the need to address the responsibility and accountability of corporations for human rights violations acknowledged? This is an especially pertinent question where it concerns imminent major global challenges such as climate change, which poses one of the greatest threats to human rights. Two major milestones of the last decade in the area of (environmental) sustainability are analysed: the Paris Climate Agreement and the Sustainable Development Goals. What role does the BHR narrative play in this context?

This contribution discusses business attitudes to human rights obligations and how the United Nations Guiding Principles on Business and Human Rights (UNGPs) have affected them. These are best understood historically through a number of periods. The first, between the mid-1970s and the end of the 1980s, coincides with intergovernmental organization-based codifications relevant to corporate social responsibility. Business representatives were highly defensive towards extensive international legal obligations not only in relation to human rights but to corporate social responsibility (CSR) more generally. This was followed by a period of ‘voluntarism’. By the 1990s, businesses had accepted that there could be a link between their operations and human rights violations but continued to reject binding legal duties. Instead, businesses opted for voluntary codes of conduct based on individual corporate, or sectoral, initiatives. It was out of this period that the UN Global Compact emerged. ‘Voluntarism’ continues into the third period, the era of the UNGPs. The UNGPs can be characterized by ‘institutionalized voluntarism’ achieved through the framework for business and human rights represented by the UNGPs. Each period will be examined followed by a concluding section that considers business attitudes to an emerging fourth period that introduces legal obligations through mandatory due diligence laws.

This article presents a review of the literature on the United Nations Guiding Principles (UNGPs) for the purpose of situating the UNGPs in the voluntary corporate social responsibility (CSR) infrastructure. We identify four key themes that underlie the debate: (1) a critical assessment of the UNGPs, (2) their application to different sectors, (3) a discussion of how to embed key aspects of the UNGPs into national and regional contexts, and (4) reflections on the role of due diligence. We discuss these themes and outline some practical and theoretical take-away messages. Our review highlights some similarities and differences to the discussion of voluntary initiatives in the field of CSR, especially the UN Global Compact. Our discussion helps to understand how the UNGPs are situated in the voluntary institutional infrastructure for CSR. Finally, we show how the theoretical and practical discourse on the UNGPs can be further advanced.

This article discusses the evolution, current trends, limitations and controversies around the understanding and practice of human rights due diligence (HRDD), a concept developed in the course of the work of United Nations (UN)-mandate holder, John Ruggie, and enshrined in the UN Guiding Principles on Business and Human Rights. While the concept has gathered broad acceptance and a growing number of legislative proposals are seeking to entrench it in law, significant differences of opinion exist among stakeholders as to its nature, objectives and relationship, if any, with legal liability. These differing understandings are at play in a contest to shape future legislation. Some of these carry significant risks for rights-holders, notably the risk of outcome being superseded by process and superficial, compliance-oriented HRDD prevailing in the law or in its interpretation and practice. As legislative efforts continue, the authors warn against the risk of hollow laws which do little to change the status quo or, even worse, inadvertently provide a tool to further impunity for business-related human rights abuses.

This article provides an overview of the key features of multinational human rights litigation in the United Kingdom, including the development of a tort-based parent company duty of care, the principles relating to forum non conveniens and applicable law and other key procedural and practical barriers to victims’ access to justice. The article highlights some of the actual and perceived limitations of litigation. It also considers the concurrent development of and mutually reinforcing relationship between MNC tort litigation and the field of Business & Human Rights.

Many transnational corporations (TNCs) that conducted business in South Africa during apartheid had deemed it profitable and desirable, despite the country’s systemic human rights violations against its majority black population. In the aftermath of the 1960 Sharpeville Massacre and 1976 student uprising, various United Nations and other international resolutions condemned TNCs for their incestuous relationship with apartheid South Africa and called for international sanctions against the regime. The demise of apartheid in 1994 brought about a new democratic, constitutional dispensation based on respect for human rights. However, attempts at holding TNCs liable for aiding and abetting the apartheid regime were fraught with obstacles and proved unsuccessful. Yet, the pursuit of strategic, class action litigation in areas as diverse as collusive conduct in bread manufacturing to occupational lung disease in South Africa’s goldmining industry have proven to be more successful in developing legal remedies against corporate harm. Areas impacted are extended legal standing under the common law, development of new causes of action and generous application of contingence fees arrangement.

The decade of the United Nations Guiding Principles on Business and Human Rights (UNGPs) coincides with India’s National Voluntary Guidelines on businesses’ social, environmental, and economic responsibilities (NVGs) and the National Guidelines on Responsible Business Conduct (NGRBC) – an updated version of the NVGs. Human rights are one of the core principles in both guidelines and they draw upon the ‘Protect–Respect–Remedy’ framework of the UNGPs. The NVGs and NGRBC go beyond the UNGPs by requiring organizations not only to respect human rights, but also to promote them in their spheres of influence. Several factors, however, derailed the implementation of this progressive policy shift. This article explores the challenges in implementation and calls for the multiple actors involved to work together and shape a collaborative action plan for effective implementation of the NGRBC in the next decade. The authors reiterate the need for alternative lenses to frame the responsible business agenda within developing countries through positive obligations.

After a decade, different businesses adhere to the UN Guiding Principles on Business and Human Rights (UNGPs). Some key commercial entities, however, remain largely outside of the UNGPs universe, including professional service providers (PSPs) who are retained by businesses to provide  expert advice and services. These advisors include lawyers, management consultants, architects and others. Some may have specialized units that provide advice on the UNGPs when retained solely for that purpose. But when asked to provide general commercial legal advice, to design a building, or restructure a business, such advisors do not typically appear to apply the UNGPs, to identify negative human rights impacts and tailor their advice in a way that prevents or mitigates such impacts. This article explores the connection between the advice provided by PSPs and negative human rights impacts. It underscores the critical need for these advisors to align their business processes and advisory services with the UNGPs to avoid being enablers of human rights abuses.

Ten years after the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs), implementation efforts are in full swing. Companies in particular have used their existing corporate social responsibility (CSR) structures to make sense of and implement Pillar II of the UNGPs. This process has led to a co-optation of the business and human rights (BHR) agenda. One manifestation of such co-optation is the instrumentalization of CSR to confront and undermine the growing trend towards binding BHR legislation. Accordingly, this contribution conceptualizes Pillar II implementation as a process of domestication, co-optation and confrontation of the BHR agenda. It makes sense of this process by juxtaposing it with long-standing critique against CSR put forth particularly by critical management scholars, raising the question whether CSR is indeed well-equipped to drive BHR implementation efforts within companies.

The research and development leading to the discovery and distribution of safe and effective COVID-19 vaccines demonstrated the indispensable nature of the pharmaceutical industry. While governments played an important role in financing these efforts by prepaying for dosages, it was private industry that delivered the scientific and technical miracles. At the same time, because of vaccine nationalism and hoarding, citizens of the global south have inadequate access to vaccines. This is a moral and human rights tragedy for which governments, not the pharmaceutical industry, are primarily responsible. This article argues that, as illustrated by humanitarian disaster of inadequate vaccine access in the global south, the failure of the UNGPs to adequately address the paramount role of government in human rights violations, even when there is shared responsibility with business, is a systemic failure that makes the United Nations an inappropriate forum for addressing business and human rights issues.

What should be the interface of the United Nations Guiding Principles on Business and Human Rights (UNGPs) with other regulatory regimes in the business and human rights (BHR) universe? This article explores this issue in relation to two specific contexts. First, the interface of ‘social norm’ with evolving ‘legal norms’: relation of Pillar II of the UNGPs and mandatory human rights due diligence (HRDD) laws as well as parent companies’ direct duty of care for negligence. Second, the interface of ‘soft norms’ and evolving ‘hard norms’: how the UNGPs should inform the proposed BHR treaty. It is argued that legal norms should align with Pillar II only in a ‘loose manner’. They should draw from and build on the HRDD concept under Pillar II, but not be constrained by it, because a hard alignment of Pillar I laws with Pillar II could undercut the independent but complementary status of the two pillars. Moreover, the UNGPs should serve only as a ‘starting point’ and not the ‘end point’ in the evolution of other hard or soft norms in the future. Such an approach would be desirable because the UNGPs alone are unlikely to be enough to challenge or confront the existing structure of irresponsibility and inequality.

From the early days of the COVID-19 pandemic, technology companies have participated in the search for solutions to new challenges. One of these has been the need for public health authorities to engage in contact-tracing to help curb the spread of the disease. Manual contact-tracing for public health purposes is a well-established component of the management of epidemics and pandemics. Public health authorities identify infected individuals, question them about close contacts, and then reach out to those contacts with the appropriate public health advice. From the outset of the pandemic, many believed that technology could play a role in supplementing manual contact-tracing. How it could do so quickly became tied to issues of how it should do so, engendering a normative discussion affecting the partnership between business and government in the large-scale design and deployment of technology for public health surveillance.

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

Foreign direct liability litigation against businesses is still a growing trend in European domestic courts, going on for over two decades.1 With absent effective remedies in host states, victims of human rights abuses committed by transnational corporations’ subsidiaries try to get access to remedy in the courts of the home states of the parent companies. A crucial factor for whether such cases can succeed, is the viability of the claims against the parent companies allegedly involved in the abuses. The principal legal route that victims have used to hold parent companies liable is through common law negligence claims.

On 24 May 2020, Rio Tinto detonated an area of the Juukan Gorge in the Pilbara in Western Australia as part of its iron ore mining operations, damaging two ancient rock shelters with profound cultural significance to the Puutu Kunti Kurrama and Pinikura (PKKP) People.1 The incident has brought international attention to the importance of Indigenous cultural heritage within broader environmental, social and governance (ESG) considerations.

The sixth session of the United Nations (UN) open-ended intergovernmental working group (IGWG) tasked with ‘elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’1 (BHR Treaty) took place virtually during 26–30 October 2020.2

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.