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Achieving Access to Justice in a Business and Human Rights Context: Part 1

Achieving Access to Justice in a Business and Human Rights Context
Part 1
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table of contents
  1. Cover
  2. Half Title
  3. Title Page
  4. Copyright Page
  5. Dedication
  6. Contents
  7. Preface and acknowledgements
  8. Table of cases
  9. Table of legislation
  10. List of abbreviations
  11. Part I Setting the scene: access to justice and corporate accountability in Europe
    1. Chapter 1 Introduction
      1. 1 In search of justice and corporate accountability in Europe
      2. 2 Aim of the book
      3. 3 Scope
      4. 4 Key concepts
        1. Multinational enterprises
        2. Corporate accountability
        3. Transnational litigation against MNEs
      5. 5 Background to the book
        1. Globalization
        2. Social movements and cause-lawyering
        3. Access to justice
          1. Procedural versus substantive access to justice
          2. Access to justice or to remedy?
          3. Effective access to justice
          4. Access to justice and corporate accountability
      6. 6 Structure of the book
    2. Chapter 2 Corporate accountability and access to justice in international and European legal frameworks
      1. 1 Introduction
      2. 2 The corporate accountability gap
        1. The international legal personality of non-State actors
        2. Corporate accountability in international and European human rights law
        3. Corporate accountability in international environmental law
      3. 3 Legal frameworks on access to justice
        1. Access to justice in international law
          1. Access to justice in international human rights law
          2. Access to justice in international environmental law
        2. Access to justice in European law
          1. Access to justice under the European Convention on Human Rights
          2. Access to justice in the European Union
      4. 4 The UN Framework and Guiding Principles on Business and Human Rights
        1. Pillar I: The State duty to protect human rights
        2. Pillar II: The corporate responsibility to respect human rights
        3. Pillar III: Effective access to remedy
          1. Framing effective access to remedy in the BHR context
          2. Added-value of Pillar III
        4. Reception of the UNGPs in Europe
      5. 5 Conclusions
    3. Chapter 3 The rise of transnational litigation against multinational enterprises
      1. 1 Introduction
      2. 2 Origins of transnational litigation against MNEs in common law jurisdictions
        1. The rise and fall of Alien Tort Statute litigation in the United States
        2. Transnational tort claims against MNEs
          1. United States
          2. Canada
          3. Australia
          4. England
            1. Jurisdiction
            2. Corporate group liability
            3. Access to evidence
            4. Litigation costs
      3. 3 Progressive development of transnational litigation against MNEs in European civil law jurisdictions
        1. France
          1. Criminal litigation
          2. Civil litigation
        2. Netherlands
          1. Criminal litigation
          2. Civil litigation
      4. 4 The role of the corporate accountability movement
        1. Understanding the corporate accountability movement
          1. Emergence
          2. Characteristics
          3. The European corporate accountability movement
        2. Legal mobilization for corporate accountability in Europe
          1. Strategic litigation
          2. Measuring the success of transnational litigation against MNEs
            1. Legal and non-legal benefits
            2. Out-of-court settlements
      5. 5 Conclusions
  12. Part II Suing multinational enterprises in Europe: comparing national experiences in civil law jurisdictions
    1. Chapter 4 Civil litigation against multinational enterprises in France and the Netherlands
      1. 1 Introduction
      2. 2 Jurisdiction of home State courts
        1. Corporate defendant domiciled in the EU
        2. Corporate defendant domiciled outside the EU
          1. Joining of co-defendants
          2. Forum necessitatis
        3. Lis pendens
      3. 3 The law applicable to transnational claims against MNEs
        1. Applicable law in transnational claims against MNEs
        2. The Rome II Regulation
          1. General rule: lex loci damni
          2. Residence of the parties
          3. Escape clause
          4. Environmental damage
          5. Freedom of choice
          6. Overriding mandatory provisions
          7. Rules of safety and conduct
          8. Public policy of the forum
        3. Towards a revision of the Rome II Regulation?
      4. 4 The procedural framework for initiating civil proceedings
        1. Right of action
        2. Standing of NGOs
        3. Collective redress
          1. EU efforts on collective redress
          2. Collective redress in France
          3. Collective redress in the Netherlands
      5. 5 Production of evidence
        1. Burden of proof
        2. Admissibility
        3. Disclosure
        4. Discovery
      6. 6 Remedies
        1. Damages
        2. Other remedies
      7. 7 The cost of civil litigation against MNEs
        1. The loser pays principle
        2. Access to legal aid
          1. The EU legal framework on legal aid
          2. National experiences
        3. Market-based funding mechanisms
      8. 8 Conclusions
    2. Chapter 5 Criminal litigation against multinational enterprises in France and the Netherlands
      1. 1 Introduction
      2. 2 Prosecuting MNEs for extraterritorial crimes
        1. The territoriality principle
        2. Alternative principles of jurisdiction
          1. Active personality
          2. Passive personality
          3. Universal jurisdiction
      3. 3 The participation of victims and NGOs in criminal proceedings
        1. Initiating criminal proceedings
        2. The rights of victims of crimes under EU law
          1. Victims’ right to receive information about their case
          2. Victims’ rights in the event of a decision not to prosecute
          3. Victims’ rights to legal aid and reimbursement of expenses
          4. Victims’ right to decision on compensation from the offender in the course of criminal proceedings
      4. 4 Production of evidence
      5. 5 Punishment for corporate crime and remedies for victims
        1. Criminal punishment for companies
        2. Remedies for victims
        3. Alternative mechanisms
          1. Restorative justice
          2. Plea bargaining
          3. Out-of-court settlements
      6. 6 Conclusions
    3. Chapter 6 Holding multinational enterprises liable in France and the Netherlands
      1. 1 Introduction
      2. 2 Challenges to establishing the liability of MNEs
        1. MNEs as corporate groups
        2. Separate legal personality and limited liability within MNEs
        3. Separate legal personality and limited liability in France and the Netherlands
      3. 3 Bases for liability of the parent company
        1. Corporate veil piercing
          1. Company law
            1. France
            2. The Netherlands
          2. The single economic entity in competition law
          3. Voluntary liability
        2. Fault-based liability
          1. Tort law
            1. Direct liability
            2. Exclusion of vicarious liability
            3. The Shell case in the Netherlands
          2. Company law
          3. Environmental law
            1. France
              1. Legal framework
              2. The Erika case
            2. The Netherlands
          4. Labour law
            1. Co-employment
            2. The AREVA case
        3. Criminal liability
          1. Corporate criminal liability
          2. Criminal liability in corporate groups
          3. Elements of corporate criminal liability
            1. Actus reus
            2. Mens rea
      4. 4 Corporate social responsibility: an increasing source of liability?
      5. 5 Conclusions
  13. Part III Future pathways for access to justice in business and human rights
    1. Chapter 7 Achieving access to justice in Europe through mandatory due diligence legislation
      1. 1 Introduction
      2. 2 Unpacking human rights due diligence
        1. The concept of due diligence
        2. Human rights due diligence in the UNGPs
        3. Human rights due diligence and access to justice
      3. 3 Mandatory human rights due diligence in national legislation
        1. Mandatory human rights due diligence standards
        2. The French Act on the Duty of Vigilance
          1. The HRDD obligations of companies
          2. Liability regime
        3. The Dutch Child Labour Due Diligence Act
      4. 4 Towards mandatory human rights due diligence in the EU
        1. Existing EU due diligence standards
        2. Options for an EU instrument on mandatory human rights due diligence
          1. Scope
          2. HRDD obligations
          3. Enforcement
          4. Access to justice
      5. 5 Conclusions
    2. Chapter 8 Achieving access to justice through an international treaty on business and human rights
      1. 1 Introduction
      2. 2 The contentious road to an international treaty on BHR
        1. The UNGPs’ failure to achieve access to justice
        2. The positions of the main stakeholders on a BHR Treaty
        3. Pros and cons of a BHR Treaty
          1. Arguments in support of a BHR Treaty
          2. Arguments against a BHR Treaty
      3. 3 The added-value of an international treaty on BHR for access to justice
        1. The type of international instrument
        2. Scope
        3. Content
          1. Business liability for human rights abuse
          2. Jurisdiction
            1. Jurisdiction in civil cases
            2. Jurisdiction in criminal cases
          3. Applicable law
          4. Participation of victims in proceedings
          5. Procedural and practical barriers
          6. Remedies
      4. 4 Conclusions
    3. Chapter 9 Conclusions
      1. 1 Main findings
      2. 2 Looking forward
  14. Index

Part I

Setting the scene: access to justice and corporate accountability in Europe

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