What is the next frontier in Business and Human Rights in international law? Should the developments be limited to country-by-country national regulations and the creation of binding obligations for businesses to respect human rights and the environment? Or are there developments in international law leading towards the consolidation of due diligence binding practices on social, human rights and environmental assessments by companies and investors? Should those be minimum international standards that foreign investors ought to respect by performing such assessments?

The field of Business and Human Rights has attracted growing attention in recent years considering that companies can be directly linked, or even cause, human rights violations and harm to the environment both in their value chains and operations worldwide. The way in which human rights should be regulated for businesses, and even if there should be hard law on the matter, remains a spirited debate. As reflected in the UN Guiding Principles on Business and Human Rights, States still hold the primary responsibility to protect human rights, while the responsibilities of enterprises may still not be fully clear. Although many transnational corporations have adopted Corporate Social Responsibility (CSR) policies, these in many cases may result from reputational concerns rather than from a sense of legal obligation.

To address concerns for the protection of minimum labor, environmental and human rights standards, important legislative developments are taking place at the domestic, regional and international levels. For instance, some States have introduced CSR clauses into trade and investment agreements, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Canada– Colombia FTA, the EU-Vietnam FTA, and the Regional Trade Agreement entered into between the European Union, the United Kingdom, and the Southern Common Market (MERCOSUR). Of special relevance is the 2016 Nigeria–Morocco BIT which includes several provisions related to human rights protection, labor, environment, and corruption. Several of those provisions are hard law.

In parallel, various States have adopted national laws and action plans on Business and Human Rights or are discussing legislative initiatives to prevent human rights violations and adverse environmental impacts. For instance, Article 5 of the Chinese Company act requires enterprises to “undertake social responsability”, whilst France’s 2017 duty of vigilance law mandates large French companies to prevent severe human rights violations and environmental damage. The European Commission has proposed a directive that aims to foster sustainable and responsible corporate behaviour and anchor human rights and environmental considerations in the decisions on companies’ operations. Those legislative acts are helping to create binding obligations for companies to prevent and remedy human rights violations across their group operations. Yet, query as to whether the existing norms may help to drive change towards responsible business practices and whether the current voluntary approach of business to human rights and responsible business conduct is sufficient. This Panel will engage in discussions between experts, policy makers and companies to discuss the contents of existing legislations, its implementation, results and opportunities for strengthening regulatory requirements. It will also discuss the role of international law including treaties and investment arbitration in Business and Human Rights. Among others, the following issues will be addressed:

• Countries’ journey from voluntarism to mandatory due diligence
• How to define company liability in this legislation.
• Whether international arbitration has something to learn from due diligence CS0 assessments, human rights assessments and the underlying instruments that may make those assessments obligatory?
• Could failure to comply with CSR and human rights assessments contained in domestic law raise an issue of legality of the investment before international arbitral tribunals?
• Are obligatory CSR and human rights assessment desirable to promote foreign direct investment in the host State?
• While reports on this topic have concluded that CSR requirements have a positive effect on attracting investment, would human rights assessments have a same effect?
• Should States and treaty negotiators aiming to attract investments reject requesting that due diligence CSR and human rights assessments be performed by companies and foreign investors?