Keynote: CSR Policy: From soft law to hard law

Speaker: Prof. dr. Nicola Jägers, Professor at Tilburg University and former member of The Netherlands Institute for Human Rights (College voor de Rechten van de mens)

Business & Human Rights: Paradigm Shift or Pendulum Swing? 
 
In this keynote Nicola Jägers will sketch and reflect on current development in the Netherlands against the broader regional and international developments in business and human rights. These developments seem to point towards a paradigm-shift, a transformation of voluntary guidelines into legally binding CSR obligations. Is the business and human rights tale of sticks and carrots changing fundamentally or will the pendulum typically swing back to the old way?

Panel 1: The implementation of mandatory human rights due diligence

Chair: dr. Laurens van Apeldoorn, assistant professor at the Open Universiteit

Speakers:
Prof. Liesbeth Enneking, Professor at Erasmus University Rotterdam

Putting the Dutch Child Labour Due Diligence Act into Perspective

In May 2019, the Dutch senate adopted a private member’s bill introducing a due diligence obligation for companies bringing goods or services onto the Dutch market with respect to the use of child labour in their supply chains. While the adoption of the Child Labour Due Diligence Act could have put the Netherlands at the forefront of international developments relating to mandatory due diligence legislation, it hasn’t quite worked out that way. In this presentation, I will discuss whether and to what extent this Act remains of relevance in view of subsequent legal and policy developments in the Netherlands and at the EU level.

Simone de Boer, Dutch Ministry of Foreign Affairs

Simone de Boer will talk about the smart mix of measures for responsible business conduct from a government’s perspective

Manon Wolfkamp, project lead Legislation MVO Platform

From tick the box to meaningful due diligence

Manon Wolfkamp will talk about how to develop an enforcement regime for a Dutch due diligence law that encourages companies not to tick the box but to really develop a qualitatively good due diligence process while at the same time taking into account that the norm is still quite dynamic.

Jindan-Karena Mann, Phd researcher at the University of Amsterdam

Human rights due diligence laws as a tool for establishing tort liability

Human rights due diligence laws define standards of care for companies, and in this way arguably also delineate the contours of legal liability when those standards are not upheld, including tort liability. In this presentation, Jindan Mann asks how due diligence obligations can be flexible enough to work with different types of companies and industries, while also being specific enough to set clear legal standards for a company’s duty of care. It will approach these questions by pondering how a company might use HRDD laws to defend itself against business and human rights tort claims, and what challenges arise when translating ideals into law.

Panel 2: The business-state nexus and institutional incentives

Chair: Nicky Touw, Phd researcher at the Open Universiteit

Speakers:
Marije Hensen, senior environmental and social advisor at Atradius State Business

The impact of human rights due diligence legislation on E&S due diligence in the financial world 
 
In this presentation, Marije Hensen will explain the work of ADSB, ADSBs position between state and companies, the role of CSR of companies in the ADSB due diligence.

Niels Hazekamp, consultant at BothEnds

The CSR policy of the Dutch export credit agency fails to protect human rights when supporting exporters abroad. What can we learn from experiences on the ground? And how should it consider climate risks?

Dr. Geraldo Vidigal, assistant professor at the University of Amsterdam

Dr. Geraldo Vidigal will discuss proposals, especially the one now being discussed in the area of fisheries subsidies, that seek to establish positive limitations on states’ rights to grant subsidies, negotiated on the basis of the need to protect common interests of humanity rather than the interests of competing producers. He will question whether this new logic could be expanded to the field of subsidies affecting human rights.

Dr. Tomas Hamilton, post-doctoral researcher at the University of Amsterdam

The arms trade and serious human rights violations: Harmonising mandatory due diligence legislation with international criminal law?

International criminal law (ICL) can hold a State official or corporate officer responsible for arms exports that contribute to serious human rights violations. What are the relevant ICL standards of complicity? And how were ICL standards applied in the Kouwenhoven and Van Anraat cases, in the context of the Dutch regulatory landscape and UN and EU arms embargoes? Is this relevant to the development of Dutch mandatory due diligence legislation? Without providing answers, this presentation poses the three questions as points to consider in the discussion on the new Dutch legislation.

Jöelle Trampert, Phd researcher at the University of Amsterdam

Human rights obligations of States in the context of B&HR: regulation, investigation, and the problem with jurisdiction 
 
Description of presentation: Under international human rights law, States are generally not required to protect against human rights violations occurring outside their jurisdiction. But human rights bodies and courts are increasingly recognising that in certain circumstances, States may have obligations which are not restricted by the primarily territorial understanding of jurisdiction. What duties do States have to regulate conduct of businesses domiciled in their territory and to investigate gross human rights violations abroad, and how do these relate to extraterritorial jurisdiction?

Panel 3: The impact of mandatory human rights due diligence on access to remedies

Chair: Prof. G.K. Sluiter, Professor at the Open Universiteit and the University of Amsterdam, Lawyer at Prakken d’Oliveira

Speakers:
Channa Samkalden, Lawyer at Prakken d’Oliveira

In her presentation, Channa Samkalden will draw from her experience assisting individuals and organizations to claim remedies in situations of corporate human rights abuses. She will question whether the introduction of human rights due diligence legislation will actually be as beneficial as many hope, especially with an eye to effectuating access to remedies.

Joris Oldenziel, independent member of the Dutch National Contact Point for the OECD guidelines

Addressing human rights due diligence through the OECD Guidelines' grievance mechanism

In the 2011 update, the concept of human rights due diligence was incorporated into the OECD Guidelines for Multinational Enterprises. As a result, the OECD Guidelines' "Specific Instance" procedure allows for affected workers, communities and individuals to file complaints with the OECD National Contact Points (NCPs) for alleged corporate non-compliance with those human rights due diligence principles. Joris Oldenziel, independent member of the Netherlands NCP, will provide examples of such cases and their outcomes and address how they may relate to (future) human rights due diligence legislation.

Dr. Anna Beckers, tenured Assistant Professor at Maastricht University

The interaction between due diligence obligations and civil liabilit

The interaction between due diligence obligations and civil liability is uncertain given that all due diligence legislations so far in place have avoided a clear provision that lays down the conditions for liability. Using the example of the German and the French law as an example, this presentation will provide some insights into how the two concepts of due diligence and civil liability/duty of care can interact. She will also discuss some ways in which due diligence can be aligned with the evolving case law in the UK on the duty of care.

Nicky Touw, PhD researcher at the Open University

Beyond remedies in civil litigation against multinational companies? 

Civil litigation against multinational companies has been a strategy to hold corporations accountable for human rights violations that took place overseas for a considerable time now. Current legislative initiatives attribute more functions to civil litigation, going beyond claiming remedies alone. This presentation will questions whether private law as it stands is ready to fulfil these functions, highlighting some of the challenges.

Closing remarks

Speaker: Prof. G.K. Sluiter, Professor at the Open Universiteit and the University of Amsterdam, Lawyer at Prakken d’Oliveira