Access to evidence and the regulation of corporate human rights violations

This thesis focuses on the continuous but evolving role that the creation of transparency has in the regulation of global value chains and ensuring the corporate responsibility to respect human rights. Purely market-led accountability through transparency – by naming and shaming a corporation as took place in the 1990s – proved to be insufficient to address the full scope of corporate human rights violations. In 2011, the UNGPs – a soft law instrument – were adopted. In order to respect human rights, corporations need to perform HRDD. On the basis of the UNGPs and the concept of HRDD therein, it now seem to be the corporations themselves that need to create the transparency that would allow the market and civil society to hold them accountable. Given the lack of a specific enforcement mechanism in the UNGPs, there can be different ways for holding corporations accountable for human rights violations. One mechanisms is through transnational civil litigation. A barrier for litigating these cases is said to be access to evidence because relevant information is often missing on the side of the plaintiffs. This poses a dilemma. The corporate responsibility to respect and the way in which corporations gather and disclose information in order to prevent and remedy human rights violations, are – de facto – being enforced through civil litigation. In order to actually litigate and prove these claims, plaintiffs seem to be in need of precisely that information. By focussing on this situation, this thesis addresses a gap in scholarly research on how the HRDD transparency requirements interact – and to what extent they should actually do so from a normative perspective – with doctrines of civil procedure and evidence in order to create the accountability envisaged by transnational civil litigation. Moreover, it addresses the question to what extent they can actually do so. The thesis therefore poses the general research question – How should access to evidence in transnational civil litigation against corporations over human rights violations taking place in their global value chains be organised, in light of the regulation of global value chains in and through international human rights law? The thesis develops an answer to this question in two parts. The first part of the thesis focuses on the role of transparency in the regulation of corporate human rights violations. It develops a normative framework for understanding this role on the basis of international human rights law. To do so, chapter 2 explains that the complexities of global value chains make it difficult to allocate human rights obligations along the value chain with precision and absolute legal certainty. It is however argued that 1) when the jurisdiction of a court has been seized, at least the right to a fair trial applies to these cases, and 2) when states take it upon themselves to adjudicate and regulate the extraterritorial conduct of corporations within their territory with the aim of addressing corporate human rights violations, they should do so in line with international human rights law and in particular the UNGPs. Within this context, chapter 3 and 4 describe the normative framework itself. It is argued that, on the basis of the right to a fair trial, access to evidence should be organized in such a way that the overall procedure remains fair in light of the right to adversarial proceedings, the equality of arms and access to court. The fair trial guarantees are however not sufficiently concrete to dictate in abstracto the exact evidence that should be made available, when, how and to whom in a given situation. The domestic legal order is taken as a starting point for the application of the “overall fairness test”. This assessment depends heavily on the domestic rules in place and the relative position and responsibilities of the parties. In light of this general assessment of the right to a fair trial, the overall fairness of the proceedings in relation to evidentiary matters should be taken especially serious in the business and human rights context given the structural risk of informational asymmetry. Moreover, the transnational component of establishing access to court and the specific (corporate) interests of the parties in the litigation further necessitate such a serious assessment of the overall fairness of the procedure. For business and human rights litigation, the inquiry into the fairness of the procedure is then developed further on the basis of the right to information in international human rights law and the UNGPs. In this respect, chapter 4 shows that the scope of the obligation to gather and disclose information during the HRDD process should be interpreted as aiming to achieve shared knowledge production between the business and its stakeholders. In short, the leading principle for interpreting the aforementioned obligations is that power over the production of knowledge regarding human rights standards and the human rights impacts of the business should be shared. It is argued that the goal of shared knowledge production in the regulation of global value chains should be taken into account when deciding on questions of evidence in relation to these three issues. How and to what extent a plaintiff can rely on hard law to enforce this shared knowledge production still depends on the rules that are in place at the domestic level. It is however argued that even if there is no “hard” due diligence law in place, a judge should at least take a broad approach to fact-finding in civil litigation when interpreting and applying existing doctrines at the national level. This has particular impact on the evaluation of facts in order to establish access to court, the accountability for the fact-finding process and the legitimate reasons for limiting fact-finding. In order to apply the normative framework, the rules applicable within the national context must be evaluated on the basis of how they function in relation to each other and whether this will allow for the overall fairness of the procedure to be maintained. Part two of this thesis therefore develops a more concrete understanding on access to evidence in the specific business and human rights context and how the normative framework functions at the national level. By focussing on three case studies – the Netherlands, France and the United States – it is shown that it is possible to implement the normative framework in very different regulatory contexts. More generally it can be concluded that the implementation of the normative framework can be done by focussing on existing legal doctrines through which the rules of civil procedure and evidence and HRDD are and can be communicating vessels. By choosing domestic jurisdictions with certain typical and outlier characteristics, some tentative conclusions are also drawn about the impact of these characteristics on the implementation of the normative framework. First, it is possible to argue that access to evidence is not necessarily an inherent barrier in civil litigation. It seems as if the extent to which a judge will use its discretionary powers is of the most impact on the extent to which the normative framework is implemented at the national level. Second, the implementation of a hard HRDD law arguably allows for the most far reaching option of accommodating shared knowledge production. To conclude, this thesis thus argues that accountability through transparency should take place by pursuing shared knowledge production, also in the organization of access to evidence in transnational civil litigation. This argument offers a renewed promise for what transparency might achieve