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Achieving Access to Justice in a Business and Human Rights Context: Preface and acknowledgements

Achieving Access to Justice in a Business and Human Rights Context
Preface and acknowledgements
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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

Preface and acknowledgements

In March 2019, I had the great honour of receiving the first IALS PhD Thesis Book prize. This allowed me to publish my doctoral thesis, which I completed at SOAS between 2010 and 2015, as a monograph. While the process of converting my thesis into a monograph was supposed to be relatively quick, it nonetheless took several years for a variety of reasons. The business and human rights field is a dynamic one, with laws and jurisprudence evolving at breakneck speed over the last decade, owing in large part to the efforts of corporate accountability activists and the momentum created by the UN Guiding Principles on Business and Human Rights. As a result, my thesis, which I had finished at the end of 2015, needed to be thoroughly revised. Furthermore, the significant advances that occurred while I was writing this manuscript, particularly in corporate group liability and human rights due diligence, could not be ignored, even after the final version of my manuscript was completed. This resulted in numerous revisions, which pushed back the publication date. The publication of this manuscript was also delayed for personal reasons. My twins, Orson and Gaël, were born in the late summer of 2018 and required my undivided attention as a mother. In addition, the global Covid-19 pandemic that began in 2019 and the subsequent juggling of work and family life slowed the writing of this manuscript. The last few years have made me painfully aware of the challenges that many academics, especially women, face in balancing academic career and family life. Despite these challenges, it is a great pleasure for me to see this project come to fruition.

This book could not have been published without the support and assistance of others. I am greatly indebted to the wonderful people who made this journey possible.

First and foremost, I would like to express my heartfelt gratitude to Professor Peter Muchlinski, my PhD research supervisor, for reading parts of the manuscript and providing moral support throughout the PhD and the writing of this monograph. I am privileged to have received his insights and intellectual guidance, as well as his mentoring.

I would like to thank my PhD examiners, Professors Nadia Bernaz and Bill Bowring, who encouraged me and gave me the confidence to pursue publication of my doctoral thesis.

I would also like to thank the SOAS School of Law for allowing me to complete my PhD and write this monograph as a Research Associate, as well as everyone who helped and encouraged me during and after the PhD, especially Professors Nicholas Foster, Philippe Cullet, Lutz Oette, and Lynn Welchman. Thanks are also due to Milieu, my employer, for providing the flexibility I needed to work on this personal project. Further thanks are due to my colleagues at Milieu, especially Chloé Fages, Lise Oulès and Cindy Schoumacher, for their support over the years.

I would also like to extend my thanks to the lawyers and campaigners I met during my research who took the time to provide invaluable information and to facilitate my research journey. Their fight for corporate accountability and access to justice is an inspiration for me, and I hope to have captured it in this book. Thanks are also due to the many academics who contribute to business and human rights scholarship and provide stimulating ideas to improve corporate accountability and access to justice. I am especially grateful to Professor Nadia Bernaz, who I have already acknowledged, and Dr Rachel Chambers for kindly reviewing my publication proposals and papers.

This book would not have been possible without the IALS, especially the IALS Open Book Service for Law editorial board and judging panel, which bestowed the first IALS PhD Thesis Book prize on me and believed in the academic strength of my writing project. I am honoured to have received this award and to be able to publish my book in open access. Thanks are also due to Sandy Dutczak and Steven Whittle for their support throughout the writing and publication of this monograph, and Fiona Cownie for her helpful comments on the manuscript. At University London Press I would like to thank Robert Davies for managing the manuscript’s publication with patience and professionalism, Lauren De’Ath for marketing, and the copy-editors for their excellent and thorough work.

I would like to thank all of my family and friends for their encouragement and support throughout my PhD journey and the writing of this monograph. My heartfelt gratitude goes to my SOAS colleagues, particularly Dr Demetra Loizou, Dr Jonathan Bashi Rudahindwa, Dr Laïla Fathi, Dr Hany Rashwan and Dr Qing-Chao Wang, with whom I shared the joys and lows of the PhD.

I am grateful to my mother Charline Décaudin, as well as my husband Joshua Roberts, whose unconditional love and support have enabled me to embark upon the path to this monograph. I owe a special thanks to Joshua Roberts, who spent countless hours reviewing my chapters and assisting me in reflecting on my research to produce what I hope is a valuable study. Finally, I would like to thank my three sons Raphael, Orson and Gaël for their patience in waiting for their mother to complete her writing project.

I have made every effort to accurately state the law as of 1 May 2021. Where possible, later updates have been included.

Virginie Rouas, 8 December 2021

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