The goal of this chapter is to elucidate the role and responsibility of the business sector for safeguarding these two rights by clarifying the origins, legal nature, scope and enforcement of obligations placed upon corporate actors. Specifically, the chapter examines whether and how the status of a duty-bearer affects the ambit of the two rights and obligations they give rise to. In other words, what are the differences between the role of businesses and that of states in securing the rights to work and just and favourable conditions of work? While the traditional (positivist) paradigm of human rights protection sees states as ultimately responsible for ensuring that rights are respected by everyone within their respective jurisdictions, certain aspects of the two rights may be fulfilled only by states. In that sense, the scope of duties arising out of the rights to work and just and favourable conditions of work which businesses can in theory be responsible for is materially different.

This Chapter examines the duties of indenture trustees appointed under bond indentures. Although their post-default duties generally are subject to a prudent-person standard, indenture trustees have relatively little legal guidance concerning pre-default duties. The rise of activist investors, however, is making it increasingly critical to identify and understand how to perform those duties. This Chapter seeks to provide that understanding.

This chapter compares the U.K. and U.S. approaches to fiduciary duty and clawback as they relate to transactions when the firm is in the vicinity of insolvency. Historically the U.S. and the U.K. have balanced directors’ duties and trustee’s avoidance powers in opposite ways. In the U.K., officers and directors have a duty of fairness to creditors in the vicinity of insolvency; in Delaware no such duty to creditors arises. The U.S. takes a strict approach to avoidance of preferential and fraudulent transfers; the U.K. requires culpability. This chapter suggests that, on both sides of the pond, the duty and clawback regimes are under stress due to their failure to appreciate the importance of equitable treatment in the vicinity of insolvency and that the current emphasis on insolvency and pre-insolvency regimes oriented toward “rescue” highlights this shortcoming. The chapter concludes, that both jurisdictions fail to appreciate that duty and clawback serve complementary functions in the vicinity of insolvency—equitable treatment of creditors; and that a more balanced approach would be better than either of the lopsided approaches taken by the U.S. and the U.K.

The relationship between business activity and human rights in the context of intellectual property (IP) is unique. First, it is an example of how national efforts to control the human rights impact of business activities can be frustrated by international agreements. Thus, the obligation under the Guiding Principles for states to maintain sufficient national policy space to address human rights impacts is particularly important in this area. Corporations also have a responsibility not to push for changes in domestic and international law that would enable them to maximize profits at the expense of human rights. Second, the case of human rights and IP provides an example of corporations taking advantage of legal rules that allow them to extract profits at the expense of human rights. These legal rules are directed toward a legitimate purpose, but they can also be abused in ways that harm human rights. Thus, the relationship between IP and human rights demonstrates that corporations may have a responsibility not to take maximal advantage of opportunities to make a profit where doing so would violate human rights. It also indicates that human rights law may constrain states in the choices they make about how to incentivize innovation.

The stockholder/stakeholder dilemma has occupied corporate leaders and corporate lawyers for over a century. In addition to the question of whose interests should managers prioritize in discharging their fiduciary duties, the question of how those interests could or should be balanced has proven equally difficult. To address the latter challenge, this paper advances a doctrinal innovation that is both new and time-honored—to implement a duty of impartiality with regard to directors’ discretion over stakeholder interests. A sub-component of trustees’ duty of loyalty, the duty of impartiality regulates settings in which several beneficiaries have conflicting interests without dictating substantive outcomes, especially not equal treatment. This paper proposes an analogous process-oriented impartiality duty for directors to consider the interests of relevant stakeholders. Stakeholder impartiality is a lean duty whose main advantage lies in its being workable. It can be implemented in legal systems that have different positions on the objectives of the corporation, from Canada’s and India’s open-ended stakeholderist approaches to Delaware’s staunch shareholderism.

This chapter highlights the importance of the incorporation of international standards into national laws establishing ECAs. With this aim in mind, the global architecture would benefit from enhancing the commitments made through international standards so that adhering states shall be compelled to pass legislation mandating ECAs to conduct human rights due diligence. Furthermore, stakeholders should be properly consulted. Most important, efficient enforcement mechanisms are needed to ensure that a formal complaint process enables stakeholders to challenge loans granted by ECAs on the basis of human rights and environmental violations.

Business history and theory reflect a tension between public and private conceptions of the corporation. This is embodied in the famous Berle-Dodd debate, which provides the basis for contemporary clashes between “different visions of corporatism,” such as the conflict between shareholder primacy and stakeholder-centered versions of the corporation. This chapter examines a number of recent developments suggesting that the pendulum, which swung so clearly in favour of a private conception of the corporation from the 1980s onwards, is in the process of changing direction. The chapter provides two central insights. The first is that there is not one problem, but multiple problems in corporate law, and that different problems may come to the forefront at different times. The second insight is that corporate governance techniques (such as performance-based pay), which are designed to ameliorate one problem in corporate law, such as corporate performance, can at the same time exacerbate other problems involving the social impact of corporations.

Reporting is an essential instrument for organizations to understand the impacts of their decisions and operations on people and the planet. Addressing the most serious corporate impacts on sustainability by means of reporting effectively creates an accountability mechanism that helps organizations embed critical issues such as human rights into their business practices and at the core of their strategy. Through the means of reporting, organizations identify their sustainability risks and impacts and are encouraged to be accountable for them. Reporting contributes to internal awareness and understanding of possible negative impacts, as well as the means to mitigate them while maximizing the positives. This accessibility of information enables informed decision-making by stakeholders, including civil society, investors, customers and regulators. Consequently, businesses are more inclined to avoid or limit negative impacts and hence strive to improve performance. Ultimately, effective reporting plays an important role in a company’s success, as it responds to its stakeholders’ needs for transparency and information. This chapter presents an overview of the sustainability reporting process, draws lessons from current practices on human rights reporting, and provides recommendations for (future) practitioners, presenting a snapshot of current challenges and practical thinking.

This chapter identifies the rise of a new paradigm of contracts within the modern global political economy: direct private contracts negotiated between companies and indigenous peoples (IPs) with a special socio-economic and cultural relationship to land.The above clause is taken from one such contract. These contracts are unique as IPs are one of the main negotiating parties and benefits for them are viewed as the main focus of negotiation. The contract cited above is special as it goes further than community development or social impact agreements, in order to translate indigenous rights to land by way of contract. These contracts effectively recognise indigenous rights on land and various forms of authority over said land, in addition, or in the absence of any formal title. They expose an emerging practice of formalizing free, prior and informed consent (FPIC) processes which may result (or not) in some procedural and substantive benefits for IPs. Consequently, we call this paradigm a contractualisation of indigenous land rights.

This chapter is organized under two main sections. The first discusses how the content requirements of HRIAs are conflated with the ethical requirements of the assessment itself. This, narrow and inadequate species of HRIA ethics is quite different from the extensive body of legal ethics. The second section provides a case study of a World Bank-related impact assessment, which gives rise to legal and non-legal ethical issues and which is meant to demonstrate that the absence of concrete human rights-centred ethical guidelines in HRIAs can, even with the best of intentions, lead to outcomes that effectively violate fundamental rights.

This chapter examines the emergence of a treaty regime at the UN on business and human rights. It examines the key provisions of the Zero Draft as well as the amendments addressed by the draft presented in August 2020. This is a welcome development and it is clear that the focus of the emerging treaty is not so much on the corporations themselves but on the necessary positive measures required of states in this field

MNCs have a central role, responsibility, and opportunity to foment change globally in fulfilling the rights of persons with disabilities. In addition to improving theiremployment practices, MNCs can leverage their economic power to fulfil other aspects of the human rights of persons with disabilities within their purview by: making physical and virtual environments accessible; ensuring that vendors, distributors and supply chains require equal employment opportunity for workers with a disability, produce accessible products and services, and take affirmative actions to employ and advance in employment workers with a disability; acknowledging the existence and value of customers with disabilities and their households and friends; marketing to such individuals; developing data accumulation and accountability instruments, including human rights impact assessments (HRIAs); and creating a general culture of diversity, equity, and inclusion of differences that includes disability. Acting in this manner would bolster rarely helpful corporate social responsibility (CSR) and diversity schemes, and position the business sector to become human rights change agents.

The duties that principals and agents owe each other are typically coterminous with the agency relationship itself. But sometimes temporal lines of clean demarcation do less work. The Chapter identifies situations in which an agent may owe duties—including fiduciary duties—to the principal prior to the formal start of their relationship, including any enforceable contract between the parties. Likewise, not all duties that agents and principals owe each other end with the relationship. The Chapter explores the rationales for duties at the temporal peripheries for an agency relationship and the extent to which they are derived from doctrines distinct from agency law. Issues in some contexts are amenable to resolution through bright-line determinations; others require nuanced and fact-specific inquiry.These structural consequences of agency require tempering either the claims to generality or the content of some theoretical accounts of fiduciary relationships more broadly, particularly those stressing the cognitive dimensions of agents’ loyalty and demanding robust commitment from the agent.