CYIL vol. 11 (2020)

CYIL 11 (2020) INVESTORS’ RESPONSIBILITIES BEYOND INVESTMENT TREATIES… Jesner v. Arab Bank 56 ) has further narrowed responsibility of parent companies for torts and violations committed by their subsidiaries, which makes more difficult for plaintiffs to hold corporations liable for human rights violations occurring outside of the US. The United Kingdom’s Supreme Court found in Vedanta v. Lungowe expansive supply chain liability based on control over the subsidiary’s or supplier’s operations and vis-à-vis business partners. According to the court Vedanta owed a duty of care to neighbours of the copper mine operated by its Zambian subsidiary. Accordingly, the parent company was in its home jurisdiction found liable for activities conducted by its overseas subsidiary. 57 In this way, the case opens up avenues for victims of human rights abuses in business operations abroad by in English law. 58 In Canada, the Court of Appeal for Ontario in Yaiguaje v. Chevron Corporation upheld the doctrine of corporate separateness against the appellants, indigenous villagers who obtained a 9.5 billion USD judgment against Chevron Corporation in Ecuador in connection with alleged environment harm. 59 As a consequence, the Chevron Corporation and Chevron Canada Ltd. remained for purposes of enforcement separate entities and the latter could not be held liable for damages caused the former. To conclude, some significant practical and normative obstacles to accessing remedial mechanisms remain. This is illustrated by the fact that there are only a few examples of businesses being held to account for breaches of RBC standards. This state of play does not generate a broader regulatory effect which usually results from successful litigation, neither does it force MNEs “to develop effective systems to manage the actual and potential adverse human rights impacts of their operations and business relationship.” 60 On the other hand, domestic due diligence laws will likely be treated by international tribunals like any other domestic laws and in long term improve the currently insufficient monitoring and enforcement mechanisms. Together with a trend of inclusion of CSR and RBC provisions in investment treaties, 61 it may make a difference for jurisdiction or admissibility of claims of calculation of damages. 6. Conclusion Policymakers are starting to take seriously the issue of “responsible investors and investments”. At the global level, the recent G20 Guiding Principles for Global Investment Policymaking stipulated that “Investment policies should promote and facilitate the observance by investors of international best practices and applicable instruments of responsible business conduct and corporate governance.” 62 To balance investment treaties and close accountability gaps, states invent new approaches while the incorporation of CSR and RBC provisions is the most noticeable means to encourage accountability of investors for their conduct. New 56 Jesner v. Arab Bank, 138 S. Ct. 1386, 24 April 2018. 57 Lungowe v. Vedanta Resources plc, 2017 EWCA Civ 1528; Vedanta Resources plc and another v. Lungowe and others. UKSC 20, judgment, 10 April 2019. 58 VAN HO, T. Vedanta Resources plc and another v. Lungowe and others. American Journal of International Law , 2020, Vol. 114, No. 1, p. 113. 59 Yaiguaje v. Chevron Corporation , 2017 ONSC 135, 23 May 2018. 60 RUGGIE, J. G. Just Business: Multinational Corporations and Human Rights . New York: W. W. Norton & Company, 2013, pp. 197-198. 61 See e.g. Canada – Côte d’Ivoire BIT (2014), Art. 15(2); Morocco – Nigeria BIT (2016), Art. 14. 62 G20 Guiding Principles for Global Investment Policymaking, July 2016, para. VIII.

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