CYIL vol. 11 (2020)

ONDŘEJ SVOBODA CYIL 11 (2020) to internationally recognised standards for due diligence. In doing this, it builds on the OECD work and notes that when reporting on due diligence, practitioners should consider the due diligence guidance for RBC concepts developed by the OECD. 50 5.3 Investment codes and laws In case of some developing countries, responsibilities are imposed on MNEs through investment codes and laws addressed to foreign investors entering and operating in the country. For instance, the Myanmar Investment Law states that investors have a responsibility to abide by international best practice environmental standards and the investor may face an “administrative penalty” for failure to comply with this provision. 51 The New Investment Code in Cote d’Ivoire creates a broad range of investor’s obligations relating to human rights, taxation or the fight against corruption. Moreover, it establishes an obligation to report on financial matters or RBC practice. 52 5.4 Domestic cases During the past decade outsourcing and globalization have resulted in the development of complex supply networks. The emergence of global supply chains gives particular significance to the question of extraterritorial human rights obligations of states and the role of MNEs which frequently leads complex supply networks. This trend also explains the increasing number of litigation cases when lawsuits are brought against corporations for their alleged behaviour abroad. In spite of the fact, that in several states courts have found jurisdiction to adjudicate human rights violations of companies operating abroad, it remains still a very limited phenomenon. According to one study, from the 1980s to 2015, more than 120 foreign direct liability cases were filed against multinational companies. But the authors admit no MNE has been found guilty and most human rights cases were dismissed.” 53 So far, it has been very difficult to hold corporations legally accountable for harm caused by their subsidiaries. Practice shows that in some states the forum non conveniens doctrine, according to which a court may decline to exercise jurisdiction if another forum is available to victims of transnational corporate abuses applies extensively. This may in effect constitute a barrier to the ability of victims residing in one state to seek redress before the courts of the state where the defendant business is domiciled. The Supreme Court of the United States ruled in Kiobel v. Shell Co. in 2013 that to adjudicate legal suits against companies for serious human right violations committed abroad, a sufficient connection do the US jurisdiction (“to touch and concern the US with sufficient force”) needs to be proved. 54 Subsequent case law (e.g. Mujica v. Occidental, 55 50 Regulation of the European Parliament and of the Council on disclosures relating to sustainable investments and sustainability risks and amending Directive (EU) 2016/2341; OECD: Responsible Business Conduct for Institutional Investors: Key considerations for due diligence under the OECD Guidelines for Multinational Enterprises. Paris: OECD Publishing, 2017. 51 Myanmar Investment Law (2016), Section 65(g); Myanmar Investment Rules (2017), Rules 175-179. 52 Code des investissements en Côte d’Ivoire (2018), Art. 36, Art. 37. 53 SCHREMPF-STIRLING, J., WETTENSTEIN, F. Beyond Guilty Verdicts: Human Rights Litigation and its Impact on Corporations’ Human Rights Choices. Journal of Business Ethics , 2017, Vol. 145, No. 3, p. 548.

54 Kiobel v Royal Dutch Petroleum Co, Case No. 10-1491, 17 April 2013. 55 Mujica v. Occidental, U.S. Supreme Court, No. 15-283, 5 November 2015.

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