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8255 results in Intersentia

Page 369 of 413

  • Introduction

  • Edited by Jacobien Rutgers, Pietro Sirena
  • Book:
    Rules and Principles in European Contract Law
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    15 June 2015, pp 1-6

  • Summary

    ‘The general principles of Community law have constitutional status while the principle proposed by Audiolux is characterized by a degree of detail requiring legislation to be drafted and enacted at Community level by a measure of secondary Community law. Therefore, the principle proposed by Audiolux cannot be regarded as an independent general principle of Community law.’

    These words are part of the ruling of the European Court of Justice in Audiolux, in which the question at stake was whether a minority shareholder in a company under Luxembourg law could rely on the general principle of equal treatment in EU law to secure its position. According to the decision rendered by the Court, general principles of EU law should be distinguished by a constitutional relevance. Examples of this are fundamental rights, equal treatment, nondiscrimination, effective judicial protection and proportionality. For similar reasons, general principles of EU law should not be restricted to a certain area of the legal order, but rather should be applicable in all its possible branches.

    More recently, however, the European Court of Justice has increasingly acknowledged and applied ‘general principles of civil law’, relying upon values which are traditionally rooted in and pertain to the domain of private law. Examples of this are full compensation, good faith and restitution of unjustified enrichment.

    The principles of EU law have been used by the Court of Justice for many a purpose. First, they are an aid to interpretation with respect to EU and national law falling within the scope of EU law. Both national law and EU law must be interpreted in the light of those principles. Secondly, they can be applied to fill gaps in EU law, and finally they may be a ground for judicial review.

    The Commission has long started a discussion about the future of European contract law, in order to overcome the piecemeal approach that had until that point been followed by harmonising national laws through sectorial directives.

  • Good Faith and Reasonableness in European Contract Law

  • Edited by Jacobien Rutgers, Pietro Sirena
  • Book:
    Rules and Principles in European Contract Law
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    15 June 2015, pp 135-150

  • Summary

    THE GENERAL ISSUE

    In a speech given at the 1975 Conference on ‘Europe and the unity of the law’, Alberto Trabucchi, who at that time was serving as a judge in the Luxembourg Court, referred to good faith as one of the general principles likely to be applied by the Court of Justice.

    Five years on, the Vienna Convention on the contracts for the international sale of goods gave a prominent role to reasonableness alongside good faith.

    Since then, the use of good faith and of reasonableness3 has spread relentlessly throughout European contract law: from the Directives to the harmonisation projects and the DCFR, up to the recent Proposal for a Regulation on a Common European Sales Law.

    Their success, which has rapidly overshadowed twentieth-century critiques and concerns about the perils of a Flucht in die Generalklauseln, is mainly based on the politics of harmonisation.

    European harmonisation enjoys rules that can easily be shared, due to their undetailed content and ubiquity in most European legal systems. On the other hand, the flexibility of the general clauses and standards satisfies the quest for uniform criteria as well as the need to preserve ‘national and regional differences’. Finally, the room which is left to the judge is common law, grounded in the authority of the precedent.

    But why, then, choose to rely on the principles of good faith and reasonableness?

    The answers to this question prompt our inquiry to move to the wider ground of legislative policy and technical legal reasons.

    The success of the principle of good faith lies within a context of radical institutional changes and hints at the influence of several schools of thought. In the politics of the European Union the role of the market has gradually replaced the traditional statist organisation, characterised by a sharp division between the quest for social justice, left to the interventionism of the State into the domestic economy, and the regulation of private transactions and contracts, inspired by a laissez-faire approach to political economics.

  • Benefits to the Defendant as a Measure for Relief: Toward a Specific Rule in European Contract Law?

  • Edited by Jacobien Rutgers, Pietro Sirena
  • Book:
    Rules and Principles in European Contract Law
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    15 June 2015, pp 151-159

  • Summary

    RESTITUTION AND UNJUST ENRICHMENT

    In a general and broad sense, ‘restitution’ means restoration, i.e. returning something lost or stolen. From a legal point of view, ‘restitution’ refers to a specific set of remedies designed to restore what the defendant has gained at the plaintiff 's expense to the plaintiff. By their very nature, restitutionary remedies always entail something wrong that therefore has to be redressed.

    Restitution is applicable to a wide range of different situations, from contracts made by mistake to uses of another's assets without the owner's consent. In all such cases, the legal system tries to restore things to the scenario of nothing wrong having even happened by returning everything to the right place, as it was before the wrongful conduct that triggered restitution. In doing so, all possible restitutionary solutions share a common goal: preventing unjust enrichment.

    What we currently know as the law of restitution and unjust enrichment was developed from a number of more specific remedies and causes of action that have been identified by common law and civil law systems in different ways. Quasi-contracts, constructive trusts, accounting for profits, rescission, equitable lien, subrogation, indemnity and contribution, among others, are legal responses in situations in which someone does not rightfully gain the right to hold another's assets or to get profit from them.

    Legal systems have tried to identify a general principle on which these separate remedies are based, and they have found it in the general prohibition on unjust, or unjustified, enrichment. In fact, it is generally acknowledged that no one is entitled to retain unjustified enrichment. In all legal systems the law on unjust enrichment is largely devoted to distinguishing between unjust and not unjust enrichment. Transfers of money or assets made in performance of valid contracts or as a valid gift are deemed justified, while transfers made by mistake or as a consequence of void contracts or invalid gift s are not justified. The former allow the money to remain; the latter require restoration, as noted above.

  • The Principle of Effectiveness and EU Contract Law

  • Edited by Jacobien Rutgers, Pietro Sirena
  • Book:
    Rules and Principles in European Contract Law
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    15 June 2015, pp 45-68

  • Summary

    A CONSTITUTIONAL STARTING POINT: ARTICLE 47 OF THE CHARTER

    There has been an intense debate on ‘constitutionalisation of private law’ in general, perhaps less intense with EU private law in particular, and even less with regard to the impact of EU fundamental rights on national contract law. The discussion has mostly been concerned with substantive provisions, e.g. in labour, non-discrimination, services of general economic interest, and consumer law, provided these provisions had a ‘horizontal’ scope of application, that is are applicable between private parties – employer–employee, trader– consumer, provider–client. Indeed, the Charter of Fundamental Rights in the EU contains many gateways in this direction, e.g. Articles 21/23 on non-discrimination, Article 30 on protection against unjustified dismissal, Article 36 on services in the general economic interest, and Article 38 on consumer protection, but their impact on contractual relations is still unclear, particularly if contrasted with the freedom to conduct a business in Article 16 and the right to property in Article 17 Charter. Despite the UK, Polish and Czech opt-outs, I am sure that this debate will continue in the future and will keep the CJEU and national courts as well as legal writing quite busy. In this wonderful new world of constitutionally guaranteed EU rights and freedoms, another provision of the Charter is easily forgotten, namely Article 47(1), which says in plain language:

    ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

    It seems that the importance of this article for private law still remains to be discovered, and of the authors who have referred to it I found only Hans Micklitz's brief remark in the conclusion paper of a EUI conference in 2009 that:

    ‘Article 47 will have a key role to play. Since 2000 the CJEU has regularly referred to Article 47, oft en in tandem with Articles 6 and 13 (ECHR), but it seems that Alassini was the first occasion where the CJEU was ready to give Article 47 more weight in strengthening the role and function of ADR mechanisms as a means of access to justice.’

  • Contractual Autonomy and European Private Law

  • Edited by Jacobien Rutgers, Pietro Sirena
  • Book:
    Rules and Principles in European Contract Law
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    15 June 2015, pp 123-134

  • Summary

    FREEDOM OF CONTRACT AS A PRINCIPLE OF EUROPEAN PRIVATE LAW

    Freedom of contract is a concept that characterises the legal systems of the European continent as well as those of the common law and is oft en expressly foreseen in the civil codes, anchored in the constitutions or otherwise established in the law in action.

    Having a look at the different experiences, the meaning attributed to the freedom of contract is not however always consistent and its limits in particular are different. For example, under the common law the duties of good faith in particular during the phase of negotiating are very weak, especially as regards what we call unjustified rescission and the liability that follows from it.

    Moreover, in many scientific contributions, private or contractual autonomy and freedom of contract are mentioned without any distinction. Some authors define contractual autonomy as the basis of the freedom of contract; others consider autonomy and freedom to be synonyms. A terminological strictness can be found in the German literature, where for example a distinction is made between Parteiautonomie, referring to the parties’ freedom to choose the law that will govern the contract, and Vertrags- or Privatautonomie to indicate the freedom to conclude a contract or not, choose the other contracting party and establish the content of the contract.

    With regard to the title of the conference, ‘Principles and Specific Rules in European Contract Law’, organised by the Society of European Contract (SECOLA), I first of all consider it appropriate to place the freedom of contract among the principles, although in many legal systems this principle is regulated by specific rules, for example, in Article 1322 of the Italian Civil Code. It also needs to be pointed out, however surprising it may seem, that the conceptual definition of principle is not at all certain, especially the difference between principle and general clause. In Italy, for example, no distinction is generally made between the principle of good faith and the general clause of good faith.

  • Principles versus Rules in the Emerging European Contract Law

  • Edited by Jacobien Rutgers, Pietro Sirena
  • Book:
    Rules and Principles in European Contract Law
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    15 June 2015, pp 7-32

  • Summary

    INTRODUCTION

    Principles of law play an important role in any legal system. Both in common law and civil law jurisdictions, courts not only plead ‘principles’ to interpret statutory provisions, but also apply them while adjudicating specific cases. Academics oft en attempt to describe or explain the essence of a certain field of law by reference to a number of underlying ‘principles’. Lawyers frequently construct legal arguments, either positive or normative, relying on presumably established ‘principles’. Finally, and more recently, legislators have come to accept that their power is restricted by ‘principles’ of law. In particular, in the wake of the Second World War, ‘general principles’ have been formally acknowledged and solemnly embraced by many national constitutions, as well as by international conventions on human rights.

    At the European level, the Court of Justice has, in recent decades, developed a rich jurisprudence of ‘principles’, which at first have solely concerned the definition and limits of the Union's powers (i.e. the principles of primacy, effectiveness, proportionality, etc.).

    Such principles have therefore been depicted by scholars as ‘institutional’, being understood as rooted in and pertaining to the domain of public law. Not surprisingly, most of them have later on found their way into the Treaties of the Union.

    Starting from the 1970s, however, the Court of Justice has declared and enforced more substantive principles, which concern the protection of human rights (i.e. dignity, equality, freedom of religion, etc.) and are (at least partly) applicable to the sphere of private law.

    More recently, the Court of Justice has even shown an increasing willingness to acknowledge and declare ‘general principles of civil law’, relying upon values which traditionally have been thought of as strictly inherent to private law. Relevance has been therefore given to the principles of full compensation, good faith, restitution of unjustified enrichment, etc.

    In the meanwhile, important ‘soft ‘ law instruments, which aim at streamlining the ‘common core’ of European private law, have made explicit reference to ‘principles’, shared by all or at least most European legal systems.

  • Chapter 5 - Accountability and Redress

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 37-52

  • Summary

    In each and every situation that entails the risk, or actual occurrence, of human rights violations, effective accountability mechanisms must be available. These mechanisms have to provide victims or possible victims of such violations with effective judicial or non-judicial means of testing the legality, and practical consequences, of IFI policies, programmes and projects, including the role of IFI Member States, and to have consequences attached to these if so required from a human rights perspective.

    This chapter discusses a number of (selected) issues within this domain relevant to further specify what accountability and redress mean for IFIs. The focus is on measuring standards for effective accountability and redress (subsection 5.1); human rights impact assessments (subsection 5.2); existing IFI accountability mechanisms (subsection 5.3); and mediation, arbitration and related dialogue-based ways of conflict resolution (subsection 5.4).

    SUBSTANTIVE AND PROCEDURAL STANDARDS

    One can find a range of international instruments reflecting upon accountability and redress in the case of violations of international law, no matter which actor (States, international organisations, companies). In the following, I take the words used in the DARS, DARIO, Maastricht ETO Principles, and UNGPs as inspiration, not because they are legally binding in each and every situation discussed in this chapter, but because they reflect common sense views on the need to provide reparation in the case of internationally wrongful acts, as well as how that could and should be done in practice. The words chosen are presented here in a descriptive, non-problematised way (italics added for emphasis).

    The DARS provide that States are responsible for internationally wrongful acts and that they are ‘under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require’ (Article 30). Further to that, responsible States are under an obligation ‘to make full reparation for the injury caused by the internationally wrongful act’, while’ [i]njury includes any damage, whether material or moral, caused by the internationally wrongful act of a State’ (Article 31). Further to this, it is stated that the responsible States ‘may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part’ (Article 32).

  • Chapter 4 - Attributing Unlawful Conduct to IFIs and their Member States

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 27-36

  • Summary

    Being bound by human rights obligations is one thing, determining the exact responsibility for the violation of such obligations by the IFIs as co-duty-bearers in the domain of international human rights law is something else entirely, and is the logical next step to be discussed. This chapter discusses three aspects of the attribution of responsibility for unlawful conduct: the attribution of unlawful conduct and responsibility to IFIs (subsection 4.1); what it means to be ‘in control’ (subsection 4.2); and primary, subsidiary and shared responsibility (subsection 4.3).

    ATTRIBUTION AND RESPONSIBILITY

    The circumstances under which international organisations may be held responsible for internationally wrongful acts have been laid down in the International Law Commission's Draft Articles on the Responsibility of International Organizations. The DARIO rules are used here as one of the possible lenses through which one can look at the (co-)responsibility of IFIs for the violation of human rights obligations. In light of Article 4 of DARIO, two conditions are required under international law for the responsibility of IFIs to be established: firstly, the breach of one of their international obligations, and, secondly, that the breach at issue is attributable to the IFI. As to the latter requirement, the conduct to be attributed will most of the time be the official conduct of the organs and agents of the IFIs acting within the overall framework of their functions, irrespective of the excess of authority or contravention of instructions (see also Article 2(c) and Article 8 DARIO).

    The acts and omissions of IFIs may give rise to human rights violations where they aid or assist (Article 14), or direct and control (Article 15) a State (or another international organisation) in the commission of a wrongful act. The International Law Commission Commentary to the Draft Articles focuses especially on two conditions: the competence of the international organisation and the intention of the Member State. Article 61 of DARIO provides that the organisation must have competence in relation to the subject matter of the State's international obligation at hand before it can be held responsible, and the Commentary to the Article makes it clear that these situations are not limited to the transfer of a State's functions to an organisation.

  • Preface

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp v-vi

  • Summary

    In 2009, the Steering Committee for the programme ‘Beyond Territoriality: Globalisation and Transnational Human Rights Obligations’ (GLOTHRO), funded by the European Science Foundation and led by Belgian Professor Wouter Vandenhole, started a project on the human rights obligations of international financial institutions, most notably the International Monetary Fund (IMF) and the World Bank Group (WBG), which is composed of the International Bank for Reconstruction and Development (IBRD), the International Finance Corporation (IFC), the International Development Association (IDA), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID). The project would build on a previous project, started in 2001 by the present author, which led to the publication of World Bank, IMF and Human Rights in 2003, containing the ‘Tilburg Guiding Principles on the World Bank Group, the IMF and Human Rights’.

    The present publication provides an extensive explanatory text to, and a make-over of, the 2003 Guiding Principles, now called the ‘Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the IMF and Human Rights’ (see Annex I). These principles are adapted to new insights and developments in the domain of international human rights law over the last decade, with special emphasis on the extraterritoriality of human rights, as well as on developments taking place in the domain of the international legal responsibilities of international organisations and their Member States. The text does not discuss the extent to which the WBG and IMF, and other multilateral development banks to which the findings would apply mutatis mutandis, actually live up to their international human rights legal obligations in daily practice. The focus is on discussing and clarifying the underlying legal concepts.

    The explanatory text is comprised of arguments substantiating the Guiding Principles, taken either from doctrine or legal authorities. The aim of the publication is to clarify by what norms of international human rights law the WBG, IMF, and other IFIs are bound in 2014. Both the Guiding Principles and the text are meant to (re)present the relevant existing international human rights law (de lege lata), while adding a number of proposals with a view to the future law (de lege ferenda).

  • Chapter 3 - Applicable Human Rights Obligations

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 9-26

  • Summary

    INTRODUCTION

    As subjects of international law and as international legal personalities, the WBG and the IMF are capable of possessing rights and duties under their constituent instruments, general rules of international law, and the treaties to which they have acceded. This includes obligations in the domain of human rights, to be exercised separately from, or jointly with, their Member States. This statement will be further substantiated in this chapter by scrutinising the links between the mandates of IFIs and international human rights law (subsection 3.2); the incorporation of IFIs in the domain of international human rights law (subsection 3.3); the ‘political prohibition’, which prevents the WBG from interfering in political affairs (subsection 3.4); the human rights obligations of States acting in the context of IFIs (subsection 3.5); and the obligations following from the (legal) relationships between IFIs and private subcontractors (subsection 3.6).

    THE LINKS BETWEEN IFI MANDATES AND INTERNATIONAL HUMAN RIGHTS LAW

    As explained in Chapter 2, the WBG has chosen not to interpret its mandate in isolation from developments taking place in the human rights domain, while sometimes touching upon legal terminology. The IMF also ‘plays’ with human rights terminology, albeit in a different way. The question is which more specific human rights obligations can be linked to the mandates of these organisations and on what grounds. Let me first borrow the enlightening words of Mac Darrow - the author of a seminal book on the issue in 2003 - used by him in a piece written in 2009 for the renowned Encyclopedia of Human Rights:

    The UN Charter is perhaps the most important source of human rights duties for members of the extended UN family; the UN Charter binds the bank and the IMF equally. The IBRD [International Bank for Reconstruction and Development], IDA [International Development Association], and IMF have all entered into formal relationship agreements with the UN. The promotion of human rights is at the heart of the UN system's purposes, as provided in articles 1(3) and 55 of the UN Charter, although specific obligations are not well-defined.

  • Annex IV - Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2011) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 79-86

  • Summary

    The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights were adopted by a group of experts in international law and human rights at a gathering on 28 September 2011 organised by Maastricht University and the International Commission of Jurists. The experts came from universities and organisations located in all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council. Their work was based on legal research conducted over a period of more than a decade. The final version of the Principles, dated 29 February 2012, can be found at www.maastrichtuniversity.nl/ web/Institutes/MaastrichtCentreForHumanRights/MaastrichtETOPrinciples.htm. Although not legally binding, the Principles are often (and increasingly) referred to in national and international legal and semi-legal practice. See www.etoconsortium.org/.

    Principle 8

    Definition of extraterritorial obligations

    For the purposes of these Principles, extraterritorial obligations encompass:

  • a) obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State's territory; and

  • b) obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally.

    • Principle 9

    Scope of jurisdiction

    A State has obligations to respect, protect and fulfil economic, social and cultural rights in any of the following:

  • a) situations over which it exercises authority or effective control, whether or not such control is exercised in accordance with international law;

  • b) situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory;

  • c) situations in which the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law.

  • Annex II - Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 61-68

  • Summary

    Text adopted by the International Law Commission of the United Nations at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The report also contains commentaries on the draft articles. The text can be found at http://legal.un.org/ilc/texts/instruments/english/draft%20articles/962001.pdf. The General Assembly ‘took note’ of the Draft Articles and ‘commen[ded] them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action’ (GA Res. 56/83, 12 December 2001). A few exceptions left aside not relevant in the present context, the Draft Articles are generally considered to be customary international law.

    Article l

    Responsibility of a State for its internationally wrongful acts

    Every internationally wrongful act of a State entails the international responsibility of that State.

    Article 2

    Elements of an internationally wrongful act of a State

    There is an internationally wrongful act of a State when conduct consisting of an action or omission:

  • (a) is attributable to the State under international law; and

  • (b) constitutes a breach of an international obligation of the State.

    • Article 3

    Characterization of an act of a State as internationally wrongful

    The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.

    Article 4

    Conduct of organs of a State

  • The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

  • An organ includes any person or entity which has that status in accordance with the internal law of the State.

    • Article 5

    Conduct of persons or entities exercising elements of governmental authority

    The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

  • Annex V - UN Guiding Principles on Business and Human Rights (2011) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 87-94

  • Summary

    The UN Guiding Principles on Business and Human Rights were developed as a (key) step in the implementation of the UN ‘Protect, Respect and Remedy’ framework for business and human rights, as developed in 2008 by the UN Special Representative for this issue, John Ruggie. The Principles have been endorsed by the UN Human Rights Council (HRC/RES/17/4, 16 June 2011), and the Council also established the UN Working Group on business and human rights, requesting it, inter alia, to promote the dissemination and implementation of the Principles; to identify good practices and lessons learned; to ‘continue to explore options and make recommendations at the national, regional and international levels for enhancing access to effective remedies available to those whose human rights are affected by corporate activities, including those in conflict areas’ (ibidem). The Principles, including Commentaries, can be found at www.ohchr.org/documents/ publications/GuidingprinciplesBusinesshr_en.pdf.

    The UN Guiding Principles follow the division in terms of (a) the State duty to protect human rights, (b) corporate responsibility to respect human rights, and (c) access to remedy, to be taken care of by both states and business enterprises. The Principles are divided into ‘foundational’ and ‘operational’ principles; however, this division is left aside here. Italics have been added in order to facilitate reading/ browsing of this annex.

    THE STATE DUTY TO PROTECT HUMAN RIGHTS

    Principle 1

    States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.

    Principle 2

    States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.

    Principle 4

    States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.

Page 369 of 413