Herbert Smith Freehills has promoted three new Of Counsel from within the global arbitration practice with effect from 1st May. With promotions in Singapore, Johannesburg and Frankfurt the new Of Counsel are:
Tag: Business and Human Rights
The Dutch Government has recently published the final version of its model Bilateral Investment Treaty (the Model BIT). The key changes since the May 2018 Draft Model BIT (discussed in our blog post here) are addressed below.
The Model BIT includes some practical guidance for investors as to how the requirement of “substantive business interests” in a Contracting Party may be fulfilled. Among the innovative provisions, it includes a potential liability on investors in their home State for significant damage, personal injury or loss of life caused in the host State and a commitment to promote equal opportunities and participation for women and men in the economy.
The Model BIT reflects a change in emphasis in modern international investment agreements. The investor protections remain but there is an undoubted rebalancing of the operation of those provisions in the context of the treaty as a whole to address what is perceived by many to be a historic investor-bias in treaty drafting. Further, the Model BIT seeks to implement policy aims through a number of provisions which require recognition of, or aspirational behaviour towards, the achievement of certain development goals by the Contracting Parties.
The proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US, two of the world’s largest economies, is intended to remove trade barriers, create wealth and promote investment. On 13 January, the European Commission published the results of its public consultation on investment protection and investor-state dispute settlement (ISDS) in TTIP. Of the 150,000 responses, 97 per cent were negative. Critics have stated that the ISDS proposals would allow corporates to undermine regulation by governments in fields such as environmental protection. A further consultation is promised.
But why has ISDS in TTIP aroused such opposition? Can it be improved to strike a balance between investment protection and the right of governments to regulate? And, if TTIP is a blueprint for future free trade agreements (FTAs), what lies in store for this form of dispute resolution?
Chatham House in partnership with Herbert Smith Freehills are holding a symposium to bring together voices from across a broad range of stakeholders.
Sapfo Constantatos, Senior Group Legal Counsel, Dispute Resolution in the General Counsel’s Office, Standard Chartered Bank
Andrew Coop, Senior Legal Adviser, EU and International Trade, Department for Business, Innovation and Skills
Lorenzo Cotula, Principal Researcher, Law and Sustainable Development, International Institute for Environment and Development
Andrea Shemberg, Lead, Investment and Human Rights Project, London School of Economics; Legal Adviser to UN Secretary-General’s Special Representative for Business and Human Rights (2007-11)
Christian Leathley, Partner, International Arbitration and Public International Law, Herbert Smith Freehills LLP, London
Andrew Cannon, Partner, International Arbitration and Public International Law, Herbert Smith Freehills LLP, London
For further information, please click here.
The Human Rights Council has adopted a resolution establishing a new working group with a mandate to elaborate “an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights”. In this note, we briefly summarise the background to the resolution and its implications for the future of the business and human rights agenda at the UN.
The European Commission has published guidance for the employment and recruitment sector on meeting the corporate responsibility to respect human rights under the UN Guiding Principles on Business and Human Rights (UNGPs). The guidance sets out the steps required under the UNGPs to “know and show” a respect for human rights and has translated this into the particular context of employment and recruitment agencies.
The guidance is of relevance not only to employment and recruitment agencies, but to all companies globally, who rely on agencies for the recruitment of direct hire employees or the supply of workers. The sector guide will be particularly relevant for personnel engaged in corporate governance, ethics and compliance or human resources functions, and those whose role includes managing business relationships with employment and recruitment agencies. It is also intended to be helpful to groups who are interested in promoting respect for human rights in this business sector, including trade unions.
The European Commission has published guidance for companies in the oil and gas sector on meeting the corporate responsibility to respect human rights under the UN Guiding Principles on Business and Human Rights (UNGPs). The guidance sets out the steps required under the UNGPs to “know and show” a respect for human rights and translates this into the particular context of the oil and gas sector.
The guidance is of relevance to all companies globally in the oil and gas sector. The sector guide will be particularly relevant for personnel engaged in corporate governance and ethics and compliance functions, and whose role includes managing business relationships with contractors, suppliers and joint venture partners. It is also intended to be helpful to groups who are interested in promoting respect for human rights in this business sector, including governments, industry associations, NGOs and trade unions. The guidance builds on a draft published for public consultation in December 2012 (see our e-bulletin on the draft guidance here) and focuses on upstream activities, albeit not exclusively.
Given the increasing importance that multinational corporations attach to human rights obligations, we have published an article entitled ‘Why IOCs are paying attention to soft law on human rights’ in the Herbert Smith Freehills journal, Energy Exchange. Please click here to view the article. It focuses on the oil and gas sector and the soft law obligations which apply to International Oil Companies and the increasing social, political and contractual pressure to observe international standards of best practice, including in relation to human rights. It explains how infringements of soft law often have hard consequences. The article is authored by Stephanie Lomax, an associate in our energy department.
For more information about business and human rights more generally, please see the resources under the Public International Law tab on this blog and contact Matthew Weiniger, Stéfane Brabant, Andrew Cannon or Johanna Hull.
The Equator Principles Association (EPA) has released the third version of the Equator Principles (EPs) for managing environmental and social risks in financing projects. They are largely the same as the draft EPs released for public consultation in August 2012 (see our e-bulletin here which discusses the draft in detail), but there have been some changes of which lenders and borrowers should be aware, particularly in relation to express exclusions of certain financial instruments from scope, relaxed public disclosure requirements, and human rights due diligence. The new EPs will come into effect on 4 June 2013, but the EPA will allow the previous version of the EPs to be used where the arrangement mandate is signed before the end of 2013.
A draft of the European Commission’s Guidance for the oil and gas sector on implementing the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) has been published for public consultation.
The purpose of the Guidance is to provide practical and useful guidance on the responsibility of oil and gas companies to respect internationally recognised human rights as set out in the UN Guiding Principles.
The Guidance is not intended to be legally binding and aims to be relevant to oil and gas companies’ global operations and not just those within the EU
The first annual UN Forum on Business and Human Rights will be held in Geneva on 4-5 December 2012. The UN Forum will bring together governments, national human rights institutions, business associations, companies, NGOs and UN bodies to discuss the implementation of the UN Guiding Principles on Business and Human Rights. A provisional agenda for the UN Forum can be found at here. Herbert Smith Freehills will be attending the Forum and we will be posting a report on the Forum on this arbitration blog shortly after the event. A webinar discussing recent developments in the field of business and human rights is planned for the New Year.