 Okay good afternoon. Welcome back to our training session on access to remedies in Europe for corporate related human rights abuse. I'm one of the organizers and I have to say I'm very happy to see so many interesting people in this topic to join us for today and this afternoon we are focusing on non- traditional remedies and we'll hear various perspectives on especially company-based grievance mechanisms. We decided in the project we're currently conducting to focus on company-based grievance mechanisms as one form of non-traditional remedies we already heard in the morning from Karin and you will hear later on in the project presentation, various forms of grievance mechanisms, non-traditional grievance mechanisms. The reason why we decided to focus in this project on company-based grievance mechanisms is that there is still not a lot of knowledge about how these company-based grievance mechanisms work. They are actually also based on UN guiding principles on business and human rights and they are directly based in a third pillar framework. We already also heard this morning, Ragi mentioned that companies should either establish themselves a mechanism where communities or individuals infacted by company actions, whether directly or indirectly from doing business or they should participate in like a broader initiatives maybe like a multi-stakeholder initiatives as we also already heard this morning like fairway associations. So the company-based grievance mechanisms they have these bases in the UN guiding principles and during the last years we've seen that a number of bigger corporations have started to develop such grievance mechanisms and tried to fit it to the criteria which was established in the guiding principles but there was not much research so far on how this actually works, how to best develop them, whether they are actually used by victims and the research that has been done so far was mostly on US-based companies and we thought that in this European project it would be an added value to look at European-based companies and see how they deal with this new mechanisms, how they use it, whether it's a good mechanism, one that is actually accepted and used by stakeholders or where there is still need to improve or whether it might not work at all and yeah for this discussion this afternoon we will look a bit deeper into this mechanism and I'm very happy to be joined here at the podium by real experts on this topic and to have various perspectives on it and so that we get an input from from all sides from all stakeholders who might be involved in such company-based grievance mechanisms and what we would like to do in this session is to discuss the advantages and disadvantages of company-based grievance mechanisms to look a bit deeper into how they are designed, whether the company-based grievance mechanisms that exist so far are actually designed in the way it was proposed by the ragi framework or whether this vision even works and we also went to discuss for which kind of cases this could be an option and whether might be possible limitations for using these company-based grievance mechanisms and to do so we hear all of your expert opinions and without further ado I want to introduce you to the great panelists we have here first Karin Lukas to the left she has a background in law specialized in human rights and gender law and she's currently a senior researcher and team leader at the Rudy Botsman Institute of Human Rights and she leads the team on human rights in business and development cooperation in recent years she has led to research projects and on traditional remedies one of them you will present later on and so you have a lot of experience actually on this topic from a research point of view on the other side Wolfgang Kraus he's a CSR consultant and currently working with IPA in London it's the oil and gas industries association for environmental issues and social social environmental issues and Wolfgang Kraus has also experience in working for a company with communities as a social and CSR consultant with manager of OMV which is the Austrian oil and gas company in various countries like Pakistan, Yemen, Libya so very difficult issues also. Then we have Susanna Muskat-Gorska she has also a legal background in international and European law and also in industrial sociology and she's currently working for the legal unit of the international trade union confederation in Brussels and working and coordinating projects regionally and internationally on fundamental rights. And finally we're very happy to have Jonathan Kaufman who came all the way from Washington DC to join us for this discussion and Jonathan works with Earth Rights International one of the biggest NGOs involved in in business and human rights and Jonathan has a lot of experience as legal advocacy coordinator for Earth Rights International in supporting communities to bring claims but also non-traditional remedies against multinational organizations in Asia, Latin America, Pacific region and in recent years Earth Rights International has started to develop a new form of a non-traditional mechanism based on company-based grievance mechanisms called community-based grievance mechanism and who will tell us a bit more about it. So to start with I would ask Karin to give us kind of a state of the art overview of what has been the picture on company-based grievance mechanisms, what can you say from your research, what are pros and cons, what has developed in recent years? Thank you very much, Katharina. Maybe I should start with our Bible on human rights and business, the UN guiding principles and what they say on company-based grievance mechanisms. They say that to make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational level grievance mechanisms for individuals and communities who may be adversely impacted. As Katharina already mentioned, non-traditional grievance mechanisms and particularly company-based grievance mechanisms are still a bit of a black box. We know they are out there, they're proliferating, they're more and more everyday, but how they actually effectively function, do they comply with the principles of the criteria of the guiding principles that I mentioned earlier this morning, legitimacy, et cetera, accessibility, does that really work? It's still a bit of an open question and our research that we did at the Boltzmann Institute for a couple of years tries to look at specific mechanisms international like the World Bank inspection panel, sectoral multi-stakeholder initiatives like for example fair labor association and also company grievance mechanisms and I will talk more about those company-based grievance mechanisms, give an example. So these company-based grievance mechanisms are typically administered by businesses alone or by businesses in collaboration with other stakeholders, for example NGOs and trade unions that act a bit as brokers for the target groups for those that should actually use the grievance mechanism. They may also involve external experts to resolve specific issues in complaints, experts with hands-on expertise on specific issues. This has for example been done in some large-scale dam projects where in terms of resettlement of thousands of people, specific experts looked at very complex issues of land rights and compensation and so on. And it already came out a little bit this morning what non-judicial grievance mechanisms and of course also company-based mechanisms should not at all do is replace the judicial system. We've heard the dangers by for example Uba mentioned that the dangers of starting a procedure on a non-judicial level that actually is time-intensive and then may lead to the judicial avenue being closed because of time-in-law. So these are complementary systems, they cannot replace each other but they are good reasons and they were also mentioned this morning why the judicial system tends to be inaccessible to certain groups of persons that are harmed, structural issues, cost issues and so on. So the use of operational and company-based grievance mechanisms has grown in recent years significantly both in response to this governance gap in the judicial science but also because of the business case. So businesses have started to address and avoid conflict with communities especially with communities and community in terms of community relations to address conflicts early in order to find solutions through this company-based grievance mechanisms. There are also some benefits for the potential target group by these mechanisms. They offer recourse and possible resolution at an early stage before the issue of the problem becomes a fully-fledged human rights problem and they are more accessible to those harmed individuals and communities because they are more flexible, they are less restricted by rules of procedure and other substantive constraints that we associate rightly with the usual court proceedings and we heard a lot about that this morning in the morning panel. So ideally company grievance mechanisms should be early warning mechanisms. They should point out at issues that may turn into a full-fledged complex problem that can be tackled at a very early stage and resolved in a satisfactory way for both the potential or the actual victims and the company and in many situations the problem is already so huge and so complex that when the company mechanism kicks in there there are all sorts of problems and we see this especially with community relations. So mining companies I can refer to the case of Anglo-American. It's a big U.S. mining corporation. They have grievance mechanism according to the young guiding principles. Beautiful on paper. All the criteria are met. Accessibility, legitimacy, human rights compatibility and so on and so on. So I mean you could tick off everything. It looks beautiful. But the region where the mechanism was set up by Anglo-American was a mining site in South America where they had already big issues with the community there. There were issues of pollution of other human rights issues with this community and then the company set up that mechanism in order to try to resolve the issue and there was just no trust by the community in that mechanism and it didn't work at all so beautifully set up but no trust because of the history of the company with the community in that mechanism so that now they're trying to use or work with NGOs that have the trust of the communities and sort of can serve as intermediaries with the company. Another example is so we have the area of the community relations it's these are these are very complex issues for grievance mechanisms and then we have the aspects of workers rights and workers relationships so these are usually big brands that have suppliers all over the world with a corporate social responsibility, conviction, mandate, activities and they say well our suppliers should follow human rights, labor rights and one of the companies that we looked at a European company Adidas a big German sportswear corporation that employs over 46,000 people in over 160 countries and with sales around 14 billion dollars a year and tens of thousands of business relationships so it's one of these huge appell corporations and they also have other brands like Reebok and so on so they're really big and Adidas has actually introduced for one worker hotlines so that workers in the suppliers factories can actually contact a hotline and say well I have a problem with my wage there's an issue with the canteen food and so on and so forth and what is quite innovative in my opinion about this hotline system is that it's an sms hotline system so it's very very easily accessible basically every worker that's been rolled up in Indonesia and other Asian countries will follow basically every worker has a mobile phone and can send sms and I also talked with the with the IT person that sort of set up this this sms system so it's it's quite well fought through with possibility to stay anonymous which is also very very critical for such a mechanism and then it is further looked at what kind of issue is it is it a big problem is it for example sexual harassment or is it something that is less critical like canteen food and then the speed of addressing it is is is then applied adequately and there are two independent NGOs that are sort of brokering also they are sort of running the hotlines and like two NGOs in the Asian regions and one in Central America that are the contact points and and adidas then becomes involved if the issue concerns a breach of their workplace standards or a breach of international human rights norms so this is so this is the the the worker's situations of of individual more or less individual issues and then there is the third party complaint process that was recently set up by adidas which is more or less what we understand by a full-fledged guiding principles mechanism so this process is a possibility for third parties trade unions NGOs to file complaints to to allege violations and these are mainly collective rights violations of trade union issues more more systemic issues and one of the cases it's it's very recent standard so there are not so many cases so far but one a rather exemplary case is one of a trade union taxif in Turkey that alleged to the supervisor in the factory had approached workers who are union members and suggested that they resign from the union the trade union because they had won more than 50 percent of the workforce as members then applied to the ministry of labor to represent the workers in the collective bargaining process and they also complained to adidas that the factory had objected to to them to represent the workers in the collective bargaining negotiations and adidas met with the workers and the factory management and as a result managers and supervisors were given additional training on the adidas workplace standards and particularly on the freedom of association standards and the respective supervisor received a warning from the employer and adidas also encouraged the factory to engage in the collective bargaining process and also said that the fact was objection to the collective bargaining were unsubstantiated so this is this is on my view a good outcome of a case but there are also other cases where another for example and there's one in Cambodia where this this brokering initiative between workers trade unions and and the employers of adidas are not successful so we see here mixed results and so these were just a few examples what we see so generally as main issues or main problems are what i mentioned earlier a lack of trust in the potential target group of the potential target group in this non-judicial grievance mechanisms also we have issues of accessibility adidas is something the hotline system is a good example it's quite low level it reaches hundreds of thousands of workers in principle but still more can be done in terms of accessibility and with transparency we see also mixed results there are companies that post the cases on the websites the reports also of other trade unions that are involved it's quite clear what the outcomes are but there are other companies such as for example Gap the bqs clothing company it was i had interviews with them it was very very difficult to really find out exactly how many cases in which areas what were the outcomes because they said it's all confidential we're sorry we have to protect the complainants we cannot disclose anything but of course confidentiality is very very critical the complainants have to feel secure in bringing the complaints but it doesn't mean that basically the whole procedure remains inconsistent that cannot be the the goal of confidentiality so overall in in terms of effectiveness a lot still needs to be done it's especially from the victim's perspective and we will hear more about efforts of communities to present a model for for agreements mechanism but it can deliver a lot within the limitations that it has that's that we outlined also this morning it is a complementary approach to the judicial avenue and with with with in a limited extent but it can in its limited way address very effectively i think certain label rights related issues but also community issues so i think there's a lot of potential but it still needs to be explored further thank you thank you kavin for this very good overview this topic i would like to turn to wolfgang now a number of the big european oil and gas companies are members of your association i would like to ask you what are epiakas member organizations experiences so far i know that a couple of them have established company based current mechanisms what experience do they have in in developing this process what are what are for them advantages or what are motives to to develop it actually and what are their positive and negative experiences so far with this mechanism thank you very much thank you very much i probably give you a brief brief picture about ipika in the oil and gas industry we have several associations you would have the oil and gas producers association which is more the technical side and ipika is actually the part which is caring about the environmental side and the social side so you have to understand the oil and gas business is a huge business is a very complex business there are a lot of people working hundreds and hundreds of thousands and so you cannot you cannot say there is one case there is one approach because of the mere size of the industry but i would like to share with you a bit the the i would say the span a kind of historic span where it all started for our member companies and i would like to give you at the end of these five minutes i think i would like to give you also a kind of personal impression where it will go first of all ipika has about 38 plus minus companies all around the world signed and this means these are the companies who actually commit to a sustainable and responsible business approach so this is not a guarantee that they are not making mistakes but at least they have clear in their overall strategy the key goal to operate sustainable though we all know that oil and gas is not a sustainable product of course that's that's the point but responsible management is another issue so our members are trying to do and now the historic point where did we start where did the where did the whole process of company-based grievance mechanisms started it started ideally it would start that you have a strategy and then on on basis of the strategy in line with certain international standards you build up a model and then you immediately implement it talk to all stakeholders and everything goes smoothly no this was not the case in business business is very much fact-driven incident-driven if you open a little bakery you do not care whether you will have a big business in 10 years and you will spoil the neighbors it's almost the same in every business and so I would say that the fact the fact the upcoming complains about human rights violation the upcoming complaints of environmental problems this triggered the oil industry to think about and to work on these issues so unfortunately business is very much risk-driven that's the first thing so you have risk you have communities the communities protest they even shoot at you this happened in jemen when i used to work there and you have to manage these risks and then you find out it's because eventually you find out it's all about the human rights aspects in the business and then you have to deal with that and at the beginning and i tell you i started in vienna business administration and i even wrote my phd but there was never the case of human rights during all my studies i never heard anything about human rights apart from the law that there was they mentioned the law at the beginning of of some session but that's that was it there was no connects between business and human rights in these days this all changed dramatically and this means all the managers trained in the last 20 30 50 years they have to learn to deal with it because also for them it was new even if you were successful in certain parts of the world you are going into another part of the world and you fail because you simply cannot handle this and so risk-driven one example when i worked when i used to work for o m v as the csn manager there was the case that o m v bought the company they simply bought the company it was a german company and and the german company had stakes in the company in sudan and o m v had never the plan to keep that they just got a package they then analyzed what will i keep what will i sell but between the time between the analyzes and selling the sudan company there were a lot of accusation you are actually the complicity in human rights violation in sudan and the management was completely shocked and and they came to me as csn managers they said tell me what it's all about yeah we just bought the companies why we are now accused of being complicit in human rights violations so of course nowadays i would say the homework was not done properly the due diligence was based first of all on mere business usual business things of financial of other legal things but human rights were not considered so this was then the story how a management learned how to deal with that and how did it happen actually the management and we approached human rights experts to tell us more about the story so that was typical a kind of risk-triggered action to change the management system okay when we understood how to talk about human rights what the implications are of human rights violation the next step was establishing instruments to deal with this in the future in the meantime o m v sold sudan so this was not any longer problem and there was the clear evidence that we were neither neither the the reason for all of that if this would have happened nor did we want to continue this business at all so in the meantime we had now the instruments and with the instruments we started to change the management system because that's the next thing implementing grievance mechanisms should not be based of single decisions of a CEO or the opinion of a CSR manager no it has to be it has to be anchored in the strategy and only if it's in a strategy then it doesn't matter whether that we have a co number a or two or three it's it's part of the business so when it becomes then part of the of the strategy there are the advantages and the disadvantages the advantages are clear in the discussion with NGOs who sometimes speak for communities for people affected by environment or other social issues the NGOs you have a basis to discuss with the NGOs on basis of a management system offer of a system which should be transparent that's the other password we have to talk about transparency and that's the next important step because some people as as you said Karin they have mechanism but they are not transparent enough or they are afraid of talking transparently so along this historic cycle we are already now say in in in the year 2000 now and in the last 10 years I would say there started the way of multi stakeholder consultation so companies were not any longer afraid of talking to NGOs they were not afraid of setting up discussions even on a global basis companies and business people and managers they learned that if you have an honest approach if you really would establish a decent management system if you guarantee a transparent approach then the NGOs will not fight immediately against you they will start reasonable discussions so and and when I talk about NGOs I talk about really the huge NGOs like Human Rights Watch I talk about Amnesty International and the whole world 10 years ago they were considered to be the main organizations to challenge business especially oil and gas industry and in the last 10 years I would say the reasonable dialogue has started so the negative side the positive side was acceptance the negative side of course is that still money and profit is a big driver we should not underestimate the the profit of a company per se the profit is nothing negative but imagine you have a young gentleman who recently married he got three kids he built a house and he has a lot of loans because of course he had not enough money at the beginning so he want to earn a lot of money and bonuses are very well received usually by the employees and then when he has a certain target to acquire certain stakes in certain companies he might be driven more by his bonus than by the recommendation of the CSR manager because the CSR manager does not pay the the rent for his house so now we're coming to the human factors also in business so the disadvantages are that you cannot hide certain things which means that's a disadvantage of some of the people for others as for CSR manager is great but for people who want to optimize their personal income sometimes it could be a disadvantage because sometimes an acquisition can still not happen because going into North Korea to develop an oil fiend is today for IPCA members a no-go yeah the the exploration and production member would see it probably different because there is a lot to earn but of course it's a no-go so and at the end 2015 where are we i'm sitting for IPCA in the OECD in the multi stakeholder dialogue on local content and we are writing at the moment a guideline for creating local employment creating local suppliers creating local infrastructure gas grids electricity streets roads we're talking mainly about Africa 38 countries are there we talk about Central Asia Turkmenistan Mongolia they want to get something for their civil society and not only the royalties they would like to get our management know-how they would like to get our support in managing in managing their problems and here and that's for me state of the art now is that for the first time in this multi stakeholder dialogue and this this last now for two years there are NGOs sitting in all the discussions like Transparency International like others you name it there are the countries there are the oil and gas companies there are associations and there is also the World Bank IFC and UNDP all organizations who in the past thought they can do it alone and now we are more to a team approach and this team approach is for me personally the the the positive side to really make all these grievance mechanisms happen eventually okay thanks so much for this first input I would like to turn now to Susanna so we heard the company perspective now we're going to hear the union perspective what are the experiences from your member organizations so local unions like or national unions what experience do they have so far with company-based grievance mechanisms where do you see advantages maybe for unions to come in where do you see the disadvantages of these kind of mechanisms and where do you see the recent developments of developing such mechanisms in in Europe good afternoon everyone thank you very much for giving me the opportunity to speak here on behalf of the international trade union consideration the ITUC is a global representation of the trade union movement we through our affiliates we represent 178 million workers in almost all countries worldwide including 64 million workers in 44 european countries i would like to make some comments on the topic and then hopefully develop the argument further why we discuss so in a nutshell we see that the company level grievance mechanism will if taken alone will not cure the gap in access to judicial remedy for victims of corporate abuses we do see this gap and company level grievance mechanisms will also not cure the gap in mature industrial relations we unfortunately operate in the system of destruction of worker protection ideally workers represented by trade unions is an operational level grievance mechanism in itself and so is labor inspection as it should be under the international labor standards meaning labor inspection that has at any time access to the work site more than police just can enter without any warning labor inspection that always protects the worker even in case of the breach of migration status and the labor inspection that covers all workforce no matter how inventive the name for the worker is self-employed person posted worker whatever but this is unfortunately not the case we as trade unions we document incredible intimidation of the trade union leaders leading to to to death threats arrest on force charges surveillance name it as well as brutal changes in in the legislation i hope i will be able to to bring some concrete examples and also like the lack of enforcement of fundamental rights including fundamental labor rights is unfortunately a card played both by multinationals as well as many governments in the game of investment and trade so in a way the the unprotected workers left open to we have to name it exploitation by the companies if they come and invest in the country so in this way the most vulnerable and poor workers are left at complete disposal of often malevolent employers who use the the the gap of of accountability so when it comes to to to the to the experience with the company level grievance mechanism of course it's it's still like the we have many different kinds and many mechanisms as are named as grievance mechanisms but in in in the national we see are not convincing record of these mechanisms in terms of giving the access to actual remedy let's take the example of the compensation for unpaid wages in the most serious cases like forced labor or labor trafficking it's really it's it's in it's still impossible to to to get a compensation for unpaid wages even in in in the most serious cases we don't see that these mechanisms mechanisms have a big potential to lead to a systemic change for many reasons including also this confidentiality but they they don't really provide with with guarantees for for for some systemic change in in in companies behavior very importantly there is no clear evidence of including workforce in designing or monitoring these mechanisms so indeed they are often imposed from from the like from the from the top and definitely their potential to undermine existing collective bargaining structures is well recognized and it's not only by trade unions it's seen in all the research done so far on on the grievance mechanisms so yeah i mean i'm very much aware that we'll be talking about the company level and non-judicial mechanisms but indeed trade unions are more and more interested in in improving a regulatory avenue of ensuring business accountability even though the the barriers to to the right to remedy are well recognized and we are aware of that including the jurisdiction choice of law group proceedings indeed or or definitely the structure of the corporate group and and and lack of joint liability schemes so i think that our main concerns when it comes to the ideal company mechanisms they they do relate to their potential to undermine judicial ways or undermine collective bargaining their potential to reaching to the supply chain and definitely writes compatibility so one of the efficiency criteria from the guiding principles which standard is going to to to be used in the grievance mechanisms because the normal the immediate reply of the company is that we comply with the national laws and if the country if the if the if the state fails to transpose the the the international human rights into the national system that seems like the end story so so definitely ensuring the coherent human rights outcome of the of the grievance mechanisms is is is the concern to us and as well as better transparency and and definitely protection against retaliation so yeah thanks also to you for his first statement chanathan you also have experience and company and communities individuals as nto through traditional but also non-traditional remedies what are your experiences from the nto side they have similar experiences as trade unions maybe and also we'd like to hear a bit more about this new possibility you are currently developing to develop a really community-based grievance mechanisms thank you very much i also want to thank the organizers and for giving me a chance to be here today also i just want to thank everyone for speaking in english i realized that i'm one of the very few people in this room for whom german is not the more comfortable language if not the mother language and because europe keeps on turning out people who your educational social and professional systems keep on turning out people who are sophisticated enough to speak my language well and my country does not return the favor thank you for for for that so just to appreciate that we're speaking in english even though that's not the most comfortable language for most people in the room just very quickly i'm a lawyer with earth rights international we are an international human rights and environmental organization we're best known for representing communities in lawsuits and other legal actions against multinational companies for their involvement in very serious abuses of the human rights of indigenous communities of traditional communities in different parts of the world but that's only a small part of what we do we represent and accompany communities in various parts of the world when they have been the subject of of abuse or or human rights impact and assist them to find strategies across the board that raise their voices and and try to seek both remedy and accountability but given that background of us being so deep into the accountability and remedy side it might seem a little strange that i'm up here on the stage today mostly to talk about non-judicial and operational level company mechanisms mostly we're working in systems we're working in the legal system where there's a very clear legal framework or working in international accountability mechanisms where there's a very clear if not binding then at least guiding system of principles that that that are intelligible and understood and and widely accepted the company level grievance mechanism is a very different context so let me tell you a little story of how we got here and then i'll tell you about our ideas for improving improving the performance in in march of 2013 i think it was maybe 2014 about a year and a half ago maybe two years ago earth rights was asked to visit a set of communities in the highlands of Papua New Guinea on an emergency basis this is a place where a gold mine had been operating for the last 20 years operated by first one and then a second Canadian mining company and over the previous six or seven years revelations of absolutely horrific human rights abuses had been starting to come out in addition to environmental devastation but the security guards of this company along with police and and armed forces who were sometimes in the area to manage unrest were regularly attacking and killing villagers who would sometimes enter the mine premises to steal little bits of rock which they would then grind down to get bits of gold dust that they could sell in the market because they no longer could pursue their traditional livelihoods because the mine had essentially engulfed all their farmland and poisoned their water and then the security guards were also brutally raping women who would also venture into the mine areas either to do the same thing or even just because they had to cross the gigantic waste dumps of the mine in order to get to their homes or their farms this had been going on for a while the groups or the local human rights groups and international groups who were helping them had attempted direct engagement with the company they had taken a case to the Canadian national contact point for the OECD guidelines all of these things were more or less in process and not really going anywhere but we were asked to come on an emergency basis because the company finally having been deeply embarrassed by a human rights watch report about these abuses as a as a as a matter of damage control had created a company level grievance mechanism to address the instances of rape and the company was essentially inviting women to come and present their claims to a contractor a third party contractor on a confidential basis and if the claim was accepted they would be able to receive benefits from a list of benefits that the company was offering which included medical treatment and sometimes psychological treatment assistance to set up small businesses in the marketplace to sell secondhand clothes or or baby chickens and school fees for children in some cases and if the women were to accept that package of benefits then they had to sign an agreement that they would waive their legal right to sue the company in the future and in fact to get involved in any legal action and the local advocates and their international allies were really concerned because suddenly things were moving quickly and as as Ingrid was referring to earlier no one knew anything about preserving legal rights and they knew that we had the possibility of providing them legal advice so they wanted us to look into what are these women's legal options and what is going on with this grievance mechanism we had never encountered a corporate grievance mechanism before and we arrived and and looked into it and we had a sort of a whole cascade of emotional reactions to what was going on there on one hand this is an extremely remote place a country with a broken judicial system the possibility of of these women really finding some kind of legal redress was quite remote and the grievance mechanism was providing something inadequate yeah um in some ways insulting at the in terms of the level that it was being provided but there was the possibility of something um so that seemed good and important but on the other hand the company was essentially buying legal immunity very very cheaply um they were creating a essentially a private remedy that they had complete control over which they had consulted a bunch of very eminent international experts on but had not taken the trouble to sit down and talk to any of the victims before they designed the grievance mechanism um and and as a result there was a lot of confusion and outrage in the community but also a sense that they needed to take advantage of this because it was really their only option and what we ended up doing as a as a first as a first as a first ditch effort was number one contact the company and tell them that they needed to start agreeing to suspend the limitations periods for any claims as a condition of any of the women entering this process because this process should not be used as a way to close down legal rights but then we actually accompanied about two dozen women in their going through the judicial process through the grievance mechanism process and we sat there with them we provided them advice in terms of looking at what the what the agreed on written procedures of the grievance mechanisms were we made sure that everything was going well and we said well you know we will assist you to interact with the company and make sure you understand every step of the process and then when we get to the end we can decide you can all decide whether you think this is something that you want to be part of or whether you want us to help you think about potential other legal options um and what happened afterwards is another story um some of the women decided to accept the packages some of them decided they wanted to super company um but we we walked away from the process really intrigued by the idea of of non-judicial grievance mechanisms and to be clear in some ways this grievance mechanism broke all the rules in the sense that number one it addressed an extremely grave abuse of human rights it wasn't about you know land and and water it was about some of the most basic physical violations of physical integrity and sexual abuse um it was backwards looking not forward looking um it wasn't about building a relationship going forward or creating a mechanism to help early troubleshooting of problems um but it was a former grievance mechanism um and we realized we were going to see more of these things um as has been mentioned a few times uh it's in the unguiding principles companies should establish operational grievance mechanisms um it is there are a number of advantages for companies and for communities and we said to ourselves well if we're going to be seeing more of these um how can we try to make sure that uh that a lot of the concerns that we have about this mechanism are fixed going forward um and the answer to for us was very clear communities have to come first um where this is not the court system it's not an imposed legal order uh if if there's going to be a private system for providing remedies there's no reason why companies should be designing it unilaterally because even the most well-intentioned company when they set up a corporate a corporate driven mechanism um it's going to reflect their own interests and their own limitations um whereas the communities as the rights holders in this in in this circumstance they should be at the center of this um and so we started to develop this project that that katharine has mentioned uh which we refer to as the community driven operational grievance mechanism process as an alternative model to what we were seeing out there um and we sought out the help of experts on grievance mechanisms Karin is one of our advisors and we've really appreciated her assistance and participation um we went to uh some of the most well respected grievance mechanisms uh including the fair food program of the committee of anamakali workers which i'll come back to in a bit to get to get the best ideas um and uh kind of to to reflect a little bit on what susana was saying um for the most part we were concerned with communities in the area that are impacted by projects um because there is no international framework for them uh there is a very well understood international framework for labor rights although it is very often poorly honored by by the powerful um but for for us we were working particularly with with with in affected communities although there's no reason why this model would not also incorporate workers as well um so what would it mean to put communities first um in our conception uh one of the reasons why the mechanism in Papua New Guinea was so contentious and so inadequate um was that the communities had no faith and no understanding of the procedures that were being presented to them they were imposed um they also had uh sort of like the Anglo Gold example that Karin gave they had no trust in the company itself so anything that was coming from the company they were not they were not going to believe was in their interests even if it were designed in a reasonable fashion um the remedies that were on offer looked nothing like what the remedies would be in their culture for them they were being offered essentially development assistance when what they needed was something that would make them whole for having experienced some of the most brutal acts that can be perpetrated on a person um and they told us that in their culture that would be dealt with uh by a gift of money or pigs so giving money or pigs doesn't look much like helping someone set up a business in the marketplace um and the the company had gotten advice that oh you want to put them on a sustainable footing you want to help them start a business um and also they were also told women in this culture can't receive compensation it will be taken by their male relatives turned out that really wasn't true um so there was this complete mismatch between community expectations of what a remedy should look like and what the company was prepared to give um and um and also the company not only needs to uh the community needs not only to understand and and have um a say in um who is determining what happens in this process but how it's done some communities are consensus based communities they expect um a determination on a particular case come to come out of discussion and and consensus building some um might be more driven by the decisions of elders or respected respected leaders um others might be looking for a neutral third party um so again all of this had been imposed on these communities rather than being the product of discussion so in the community driven model it's communities that essentially come up with the design for themselves and that becomes the basis for um for a discussion with uh with with the company that eventually has to implement it um a couple of other really important aspects of design that uh that are really thorny and really difficult what is the interface with the formal judicial system I think we all recognize that um an operational grievance mechanism is not a replacement for a functioning judicial system obviously in places where there's a tremendous governance gap the existence of an operational grievance mechanism may be more important but how what is the interface preserving legal rights is one thing and and was fundamental um but for example if there's an investigation in the course of a grievance mechanism complaint um the facts that are that are created there um if it's not resolved at the company level how how are those facts going to be treated in an eventual judicial proceeding um uh do do communities have some kind of independent legal advice from the beginning to make sure that they're not waiving rights or that they understand how to proceed from one stage to another um all of these things need to be the subject of conversation negotiation and and and need to be resolved in a way that satisfactorily protects community rights and expectations um so we designed this model we researched existing grievance mechanism was we researched we researched other community-based tools for protecting human rights like community-based human rights impact assessments community-based impact benefit agreements um biocultural protocols um and and tried to pull together a conceptual model um which is described in the article that is that there's a link to in your packet um but we said we also need to see if this works theoretically this sounds great but it's also going to be really difficult um and we need to we need to find a pilot um and so there's a pilot uh this is now being rolled out and developed with a group of communities in Myanmar in Burma um in the context of a special economic zone it's not an extractive project um it's a it's an area where the government is promoting investment by creating a special zone um it's a complex context because there are quite a number of companies invested there but on the other hand there's an actual structure to deal with um it's a it's a country that has a tremendous issue with governance and and integrity of the judiciary but is also looking to try new things um as it opens up to the world um and we had communities that were in the process of being displaced so in some they had some past grievances to be resolved but also they knew that they were going to be dealing with um investors in their midst for the coming decades and that there would be labor issues there would be environmental issues and potentially others as well um and uh we've now been working with the community communities at Thila for over a year um we first explained to them the idea and they were particularly excited because it turns out that even though this is an abstract process and you would think most communities don't have a lot of practice with just designing process um they certainly understood what it's like to be subjected to a bureaucratic system that they have no control over um and they did not want to be in that in that position um and so the communities have been working slowly to understand and in an inclusive way within the community um identify which remedies they which issues they think are are appropriate to be handled in a non-traditional grievance mechanism um and then what the procedures should be to handle them uh the sez the the special economics zone management committee has in on a provisional level accepted the idea that this is going to be the starting point for developing a grievance mechanism for the zone so we have a certain level of buy-in from the government and from industry stakeholders um and we're kind of in the middle we don't know where it's going to go but at the moment um at least everyone's open to the idea uh and it and it's it's it's been interesting because on one hand you might think why would a company accept from a from communities a design that doesn't necessarily respond to their interests when they're the ones who have to implement it but from company representatives that we've spoken to many of them have said you know for those of us who actually are serious about community engagement and think that's important one of the hardest things is knowing what does the community want because a community is a complex entity it's not just one interest um and you know we try and please them in one way and then it turns out that we've run afoul of them in another way so if you're actually saying that you will be able to present to us um a comprehensive understanding of what the community expects for how grievances are going to be settled we'd be very excited to hear that we can't promise up front that we'll accept everything but yes this is a great initiative um there are tremendous challenges capacity is always an issue um it's taken already over a year and we're not done designing um and thinking about extending this to other context it's not always going to work you're not always going to have a community that's organized enough that can dedicate enough attention to developing developing process um there's always you know we are fortunately in a situation where there's not already a very bad relationship between the companies who are coming in the communities um when there is already mistrust um on one hand this might be a way to build that trust on the other hand it's it's going to be a challenge um and then there remains the question of our grievance mechanisms actually appropriate for the most serious abuses um and we feel at earth rights we feel very conflicted about this um I think we would like to be able to say no you should never use a non-judicial mechanism for something really serious but tell that to someone in the highlands of Papua New Guinea who um there's a courthouse there but there was no judge for an entire year um so I was asked to opine on is our model the wave of the future um I hope that it is to a certain extent um I do think that this is where a lot of these human rights protective tools are going they're moving towards more community ownership and recognition that it's not just the outcome that needs to be protective it's the process um and that you don't get consistently protective outcomes unless communities and affected stakeholders have been involved in in the development of the process um again I don't know if this is going to be possible in all contexts because it turns out that it's quite intense um and quite difficult but we're hopeful that as we develop experience we're going to be able to assist by developing tools that will enable communities and their advocates and assistance and consultants to to do this it remains to be seen if grievance mechanisms can handle the full spectrum of human rights issues it may be the case that this works better in a more forward-looking context and not in a backwards-looking context we don't know yet but the example that we have in front of us that gives us a lot of hope is the one that I mentioned a bit earlier the fair food program of the committee of Immokalee workers this is a program in Florida in the United States among tomato growers and for those who don't know the agricultural sector in the U.S. is it's a it's it's a very rough place to be especially for a migrant worker and the levels of of abuse of fundamental worker rights as well as sexual abuse rape sometimes violent assaults has been spectacularly high in the in sectors like the tomato growing sector in Florida but the workers organized themselves and it took years for them to figure out exactly how to do it but they were able to set up a system stakeholder-based not imposed by companies but eventually accepted by some of the biggest tomato buyers in the country the Walmarts and the McDonald's and the gigantic chains that requires all growers to abide by a worker developed code and if they do then they can charge a little bit more for their tomatoes if they don't then there are various sanctions which range from not being able to be being publicly called out not being able to charge the extra surcharge and having violations referred to the judicial system so it's possible you need to be smart and persistent and engage and use leverage but we see this as a really exciting way to fix some of the very basic trust and gap issues that exist with non-judicial grievance mechanisms thanks well thanks Jonathan and thanks to all four of you I think it was very first very interesting insights from from all your practical experience I just want to return to some of the points you you mentioned and Karina Susanna raised the worry severe criticism actually and also accusation of company-based grievance mechanisms that they are in a way undermining industrial relations that they are undermining the proper judicial system was this something you also observed in in your research that there were examples where actually unions were prevented from interacting with companies and unusual industrial relations and also did you see maybe positive examples where unions were well involved in a process and it could actually strengthen industrial relations yeah actually I actually wanted to reply to that myself because it's a very pertinent issue that Susanna raised and and it's a very complex issue on the other hand on the one hand when I did research and also like auditing with with companies the corporate social responsibility wrote and the labor relations wrote there they they usually didn't go together so these were completely different kind of departments when you when you talk to the CSR manager you you talked maybe about some internal human resources things but but you talked to the workers council person when you wanted to talk about about labor rights issues and now with with some of the company agreements mechanisms when we look at the whole system of of those mechanisms that we looked at actually there was in in in some countries where union rights are severely in danger both because the state doesn't care or the state actually goes against union rights and the employer side is very hostile and we found that in for example the case of auditors that but that may be just one example that the brokering between the the the unions and and the factory owners through editors actually led to a result where the unions were strengthened and these these were actually channels that the unions used themselves they they actually meant those complaints them themselves they used that new mechanism to seek support for their cause and but this is a solution for factory acts in country acts so the most systemic issues that you pointed out and they need involvement of the employers at at the place where things are happening they need the engagement of the state and this is actually the main actor in in this field the state must ensure proper legislation and proper implementation supervision you mentioned the labor inspectors in so many countries the labor inspectors are underfunded undermined in every possible way so what what I see as potential danger is that that we look at the development of this company and non-traditional grievance mechanisms much more than we look at the sort of more traditional state mechanisms that are so so necessary to to protect labor rights and we were talking about resources this morning this is also these are strategic decisions these are resources decisions and and we must be very careful not to divert very very important also financial resource but also capacity building know how away from from states and trade unions to grievance mechanisms that can not address systemic issues in the way that we want them to be addressed so this is a very very critical issue and what I think is also increasing but would be good to have more is that the grievance mechanism the multi-stakehold initiatives where NGO trade unions and companies work together and other grievance mechanisms engage more in a dialogue I've had one case the Kolkata's case where actually an employment issue was brought to the fairware foundation but they were not competent because it was not their company they've referred it to the fair labor association another multi-stakehold initiative and at the same time a trade union brought the case to Adidas because they were also member of the fair labor association and I think a more so there are a lot of linkages and I think more dialogue between those mechanisms would really really help to also address more systemic issues otherwise we end up really having some good solutions for some factories and some countries and this is not satisfactory well thanks a lot I would like to turn to Susanna know you've been very critical about company based grievance mechanisms I wondered whether you would still see a role for it for which cases or if at all you could imagine to have company based grievance mechanisms and where would you see the role of union of trade unions in these cases which would be the ideal role of trade unions in an ideal company based grievance mechanism I'm used to that I came so harsh it was not that much of my intention I mean definitely there are substantiated critical points that we see and it's not only trade unions that raise them but company grievance mechanisms is the way to go in I mean the added value of flexible negotiating um outcomes that that are more close to mediation than than adjudication there is always a place for them and there are ways in which grievance mechanisms operational level grievance mechanisms will not undermine or endanger collective bargaining giving a couple of examples I mean definitely if there is a grievance mechanism in a collective agreement that is enforced in the company and when there is a new grievance mechanism created sort of as an alternative or a bypass there is a problem but that does not have to be the case developing or updating grievance mechanisms at the company level can be done and should be done in dialogue and in negotiations with workers representatives be that unions or other workers representatives but then there is also the question who the worker representative is or should be and we have the international labor standard on that convention 135 meaning that this should be there should be representatives who are freely chosen by the workforce that are protected against sanction against dismissal that are that they are given means by the company to operate to represent workers so definitely mechanisms that are developed it's very much compatible with what you're not raised in terms of the communities if the the the procedures are designed and enforced and monitored in dialogue with the workers and the representatives it's only the the improvement that can be expected but there also there should be like concrete safeguards for that as well as there should be the safeguards for the company mechanisms not to undermine judicial ways and just take one example that the records to judicial path should always be open at any time of the procedures so yeah I think the civilizing leaders and definitely there are ways to create mechanisms and frameworks for better protection of workers rights thanks a lot Wolfgang you mentioned yourself that very often companies actions are incidents driven and we also I mean most of Susanna's criticism was also targeted towards the company just tries to make the best out of a bad situation for themselves kind of condoning the damage but not paying much attention to find maybe sustainable solutions during the last years as you've seen that some of the member organizations are noted you have not been directly involved in signing it but maybe you can bring some experience from member organizations now that they might have learned that they need a longer term approach to also engage with unions to engage with NGOs with maybe also local communities what strategies have they developed to integrate law awareness awareness about human rights issues environmental issues to kind of have a proactive approach and rather than a reactive one yeah as I mentioned in the last 10 years I saw an improvement in the overall situation accepting this topic as an important one for management decisions so I have brought something with me which is the community grievance mechanism a manual for implementing operational level grievance mechanism that is a kind of guideline for our member companies we will provide you with a link so it's actually it will be visible for all of you and this is a kind of recommendation to our member companies to start with a decent management process in this respect so that's the thing we have a kind of best practice manual which we offer member companies to use I would I would like to distinguish as we heard in the discussion there are the two things there are the the employee-driven grievances and there is the community-driven side and and I would like to share with you some experiences which makes it not easier to answer the questions yeah because the business sometimes is confronted with situations of reality which is not pictured in any theoretical or setup or any law take my experience was Lybia Lybia said year 2000 a lot of oil a lot of oil business actually a wealthy country actually no social unrest despite the fact that Gaddafi was ruling the country with an iron feast as we said and of course unions and other institutions were not allowed at all and you come now as a company from central europe you operate there and you ask then the first question would be you go to your local NGOs or human rights experts in Vienna and you say what should we do the law is is saying this international law but they don't care but the business is there and the people would like to work and the people would like to earn money so there are also that sometimes then solutions a bit out of the box so there was a recommendation from human rights experts and even from my law representatives that try to apply non informal mechanisms what was the non formal mechanism in in Lybia for example we organized the management organized a monthly birthday party which means after the usual working time five o'clock we invited the people from our office together together in the office rooms to have a little party officially to celebrate the birthdays of the people who had birthday in the last month but after this official ceremony congratulations and you get the basket of fruits and some flowers the management disappeared and there were just some middle managers there local people and we advised them to talk to their people openly about the problems which they have about complaints which they have about wishes which they have and these people then put all these things on the list and then discussed it with the management the other day and this was so much appreciated you cannot imagine this lasted for some years was very much appreciated by all the participants and was a kind of very special for us a grievance mechanism because otherwise we would have been thrown out of the country at all so that was a point about this side of the workers the community is in the oil and gas industry more of a problem why more because our workers are very well paid I'm looking at you I think you will know that oil workers are very well paid and all the people if you go to Yemen Pakistan you name the country everybody would like to work for the oil industry because we have high safety standard security standard and we have high salaries so this is for us not such a problem as for mining or other other industries but of course we have the community problem because for if you if the government thinks they have oil it's not always somewhere in the sea it's already under the village under a town and then it's all about relocation and that is then the thing when it really starts to be very difficult because 20 30 years ago the government told the people just to go they compensated them in in one way or the other but but or not at all but definitely not on basis of international standards so that that is really an issue which turned in the last couple would say in the last 10 years especially in the oil and gas industry it was a big driver to change strategies and to cooperate with NGOs so here I would say responsible operating company would very much cooperate in cooperate in in case of relocations of communities with all stakeholders involved government, local district, civil society and and you said it also it's sometimes difficult to establish who actually speaks for the community not I had this in Turkey we built a huge gas power plant at at at in in close to Samsung and the mayor thought he is the person we should talk to because he was democratic elected mayor on the other hand the boss of the local school he thought he is the key person and then there was the local Mufti and he thought from the religious point of view he is the person we should talk to so you have to be very careful you have to really learn from experienced NGOs you have to go with people who have done this already but one thing to cut this short and I've been to Iraq to establish this mechanism before we touched the ground even we established these mechanisms in northern Iraq I never I never had a community who acted unreasonable and I was in New Zealand and I made I had these negotiations with the Mooris and in Pakistan in Libya in Iraq in Yemen you name it I never ever had a community who argued unreasonable so so you see where I'm coming from thanks Jonathan you mentioned that companies told you that your work is very well available for them because it's very difficult for them to reach out to communities and so your work gives them the possibility to hear what the community is actually interested in which since were reasonable to me and very obvious but still I wondered whether it was really so easy to convince companies it's as you mentioned a very long process you don't know the outcomes it's a mechanism which they can't really it's not in their hands they don't know how it will proceed and will be the outcome so how can you actually win companies to participate in a community-based group and mechanism well even just the pilot is still a work in progress and I'll say we chose we chose this particular context both because the communities were eager to do it and because some of the we thought certain elements were in place that would make it more attractive for management to be open to this so I won't say it's an easy case because it's certainly not an easy case but it's a place where where there are quite a number of reasons why the government and business stakeholders are interested to have this problem solved for them but I also mentioned the Fair Foods program the Immaculate Workers program which only came after about a decade of campaigning and really smart and hard campaigning and they essentially used the power of consumer boycott against Taco Bell and McDonald's before they were able to get the first company the first major tomato buyer to sign on and so that was that was tough campaigning and they because they had a program that it was not it didn't seem to be at all in the interests of the tomato farmers to to bring it on and they cared little what the workers had to say and they didn't believe that migrant workers could organize so and they were wrong about that so I mean the the answer is that we do believe that we have value to offer here and that there there is reason for companies at least to be open to listen we generally assume that no company is going to agree beforehand to a mechanism that they haven't yet seen but at least to agree that this is going to be the basis for a discussion rather than them coming up with a process and saying boom this is what you have but I mean as advocates we are used to using the leverage that we have in the case in Papua New Guinea the whatever positive outcomes came out of the grievance mechanism there were largely driven by a fear of litigation that's probably in the end that plus reputation control are the reasons why the company set up the grievance mechanism in the first place the outcomes of the the process were pretty poor and some of our our clients decided that they wanted to sue the company and the company in the end decided to meet their demands rather than to rather than to face a lawsuit and then after that the rest of the women who had gone through the grievance mechanism process and had accepted benefits and had waived their right to sue looked and saw that the handful of women who had decided to stand up and go forward with a lawsuit had at least they believed had come out better so then they went back to the company and said well that's not fair I mean this kind of gets back to some of the conversations from this morning about you know you can only bring a lawsuit on behalf of a relatively small number of people but there might be other similarly affected people they came back and said this is absolutely unfair why should those women get more and in the end the company actually revised its benefits package upward because they exercised people power essentially so they had gone through a grievance mechanism were dissatisfied with the results and then used the power of popular pressure to make it turn out better so it's really a combination you know in this sort of in this business in human rights world and where always trying to figure out how to make the business case for human rights and that's kind of one of the buzzwords it's a it's a tagline yes you know companies will agree to do the right thing because in the end it's in their long-term best interests well yes sort of and maybe in a way that can be recognized by shareholders and maybe not and maybe in a way and that is recognized according to the legal duties of their officers and directors and maybe not for some of the things that we talk about yes for some of the things no and so it's a combination it's a combination of making the business case but also making sure that communities have have the legal support and backup are unified and under you know have have a clear understanding of their rights and what they want out of a process and using the leverage that comes to hand and building alliances with people on the industry side like potentially for example Epica and people who understand why this provides long-term value for companies and also enables companies to sort of obey the triple bottom line thanks a lot again well we already heard a lot of interesting issues a lot of different avenues I would like to turn now to you the audience whether you have any questions to raise to our panelists please Ingrid very very interesting presentations and quite in depth and good and useful just three things and Jonathan obviously my experience is that sure the grievance mechanisms are absolutely critical where they are appropriate but in certain places they want to test their own system and the integrity of their own judicial system like Vietnam like Myanmar and so we wouldn't want to be replacing that I was just interested in your comments on that and Zuzan obviously Bangladeshi Accord comes out of Rana Plaza and I'm sure every lawyer in this room and beyond has been contacted by the Bangladeshi Accord saying it's all great but we have this long line of disputes now and we've got no lawyers to who are skilled to do arbitral you know negotiations can you help us there's nothing in the Accord that enforces you know helps and so keen to hear your thoughts about whether you're twinning or helping in that position given all the incredible experience you certainly have and Wolfgang you mentioned best practice and you said you're promulgating it through your members I think everyone in this room has attended you know Geneva all the forums where business big businesses come out and championed its its CSR or sustainability programs and what we find is that they don't share their best practice and I'm keen to know whether you are you know involved in sharing best practice perhaps cross-sectorially how many of your members actually take up the best practice that kind of thing so kind of interesting thank you who would like to start so on the question of making sure that you're not replacing the opportunity to test and strengthen and build experience in local judicial systems I couldn't agree with you more you probably assume that I would agree and you know I at least at Earthwrites we've always our mantra has always been in a case involving multinational interests you sort of you follow the money from the local to the global and you try and identify mechanisms in ways to pursue justice at every stage of the way and just different things are going to work with different actors so you know because this is a community design process that you know I don't get to prescribe the elements that I would like to see but the first one of the first stages of developing a grievance mechanism is figuring out which kinds of issues fall within it and which issues the community itself believes are more appropriate to be handled through the local justice system and definitely you know we've heard in some situations people would say you know if it were in cases that things like rape we would rather than taking it to a non-judicial system we would prefer to assistance in developing a case or developing a dossier or whatever it is presenting it to the criminal authorities and developing potentially a civil claim for damages if that's if that's applicable and so building I would say off ramps into the formal judicial system is a really important and not very well developed area of grievance mechanism design so there's excluding some things from the grievance mechanism but also steering a grievance mechanism into the formal system when appropriate or necessary you know in in in the Myanmar case for example the the the community that we're working with has very little faith in the local judicial system because it's been an instrument of oppression like it has just very expressly been an instrument of oppression for them they've been displaced a number of times without either with no compensation or practically no compensation through oppressive means in order to provide land and resources to a military that controlled the entire country it was done by decree they had no recourse to the courts and so they say they told us that they were at the point of sort of essentially going into full-on opposition to the to the project because they didn't see any way through the existing structures to have their interests vindicated and when the idea of a process that they were able to be part of the design of came up that gave them some hope and so I think that's one of the keys that a judicial system that has a history of repression again no input from the communities who are affected in Myanmar it was a repressive military regime for 60 years no one has any experience of self-government or designing their own processes and the idea of doing this for them was really what gave them the sense that possibly this project could be something that brings them benefits instead of just more hardship so it's a really tough call but I I think there's a lot of room for interplay between these two things and I would expect that in a lot of cases something that starts as a as a company level grievance is going to end up in an ideal case at the in the courts or in the administrative tribunals or whatever it is I'll just comment on the Bangladesh Accords and to Rana Plaza the famous tragedy of thousands of workers buttered in a building all main brands present including EU brands members of the UN Global Compact SAI certified no union in the Rana Plaza complex or incredibly anti-union environment in the Bangladesh as part of the business culture we signed I mean the the International Trade Unions signed this this Accord as a legally binding agreement with the brands that they will support labor inspections in the government sector and then they will pay for the fund to pay victims people heavily injured with deteriorating health directly linked to the to the to the strategy long story short the fund half empty and indeed people left without without what is due to them difficult to say about what to do with this next apart from reiterating that that the business accountability has to be put more strongly in the framework of the state's responsibility to provide with the right to remedy and one of the ways one of the new ways maybe is to use more comprehensively public procurement for that meaning that making the access to public procurement conditional on the corporations due diligence providing with the let's say like grievance mechanisms remedies for violations human rights due diligence mechanisms and extending them through the supply and subcontracting chain and just to mention that that it's such and certain such that such a policy response would be now possible under the EU public procurement directive public procurement is mentioned in the employer's sanction directive as a sanction for to employers employing irregular migrants including victims for instance of trafficking or severe labor exploitation as well as such policy response would be now possible and the the WTO revised agreement on government procurement that came into force in 2014 so yeah thank you any more questions oh you wanted to I'm still there I would like to answer your question there are two points actually in it which I realized one is the big problem um one side is saying CSR is more of a marketing gag of the industry which is a a fair statement and in order to really find out what it's all about I I always say I have to encourage the civil society to really focus here to via NGOs to challenge the industry whether this is now all kind of industry not oil and gas industry challenge the industry as civil society challenge their results challenge their reports challenge the the transparency so there the there is a role and I tell you at home I have two daughters they are around they are about 20 years old and they challenge me a lot they used to to to live with me in other countries they know what it's what it's all about there and they challenged me a lot so I see that home and I would recommend very much to all of you to challenge the industry because only if the civil society is active is a thinking society even only then the industry will improve in terms of sustainability the second question was how many members to implement these these manuals I would say of course we we cannot force our members to do that but I tell you the the actual setup of CEOs in the big oil companies of this world they have very much understood that without following the UN development goals without following the guiding principles they will not be successful simply not successful so it is the point and and that's a community side if you have already spoiled the relation with communities like it happened in in in big parts of South America you have a big problem that's really a big problem on the other hand where you can start from scratch or where you will take the leftovers of Asian companies it's relatively easy for our member companies to work and and to implement the best practice exercise and here I have the example I can tell you this of Iraq and and that is something where I learned a lot because in Iraq the the the northern Iraq part was meant to be for the smaller companies companies like OMV companies like mall from Hungary small companies not the big one and the western companies and I found that they the approach of these small companies was very much appreciated because and and this is is clear it's evident they did not want to make any mistake because the big fish are always taking the money out so the small companies very much stick to all of these recommendations so and and the result eventually for the local communities was I would say there was not one case so far not not even in front of court and so obviously they did their homework well but not everybody's doing his homework well thank you Cohen it's an interaction just one one thought to Ingrid's question on the danger of non-judicial remedies replacing judicial remedies and and Jonathan also mentioned that in the case of Papua Negina the community is having the choice between no compensation and that the form of compensation that the company provided of course they took what what what they got and this is very very understandable so I think from as a temporary measure to to fill a gap this is this is sort of okay but the danger is that that we try to replace the responsibility to protect human rights of the state by strengthening the remedies pillar and this is never going to work the pillar three can never replace the pillar one so actually this is for me a warning signal that you mentioned that there was no judge for a year this is the warning signal that other avenues must be used to to pressure the state to really implement its its state responsibility to protect human rights through the universal periodic review through peer pressure of other states and so on and civil society the the remedy pillar will not be able to solve that not not the best model not you know whatever we can envisage in our discussions thank you further inputs from the audience or questions so first of all I would like to thank all the panelists for your insights and your contributions so my name is Andrei Dimailik I'm a law student at the University of Vienna and my question is for Mr. Wolfgang Kraus so you mentioned something about human rights violations in Sudan could you please elaborate on this and how did OMFAL get involved in this whole thing in the first place as I told OMV bought the company once and then was accused of being involved in in human rights violations obviously it was about security guards who were treating the communities not in the right way but in the history so that was a case which OMV was informed but we then of course as I said have hired specialists and we contacted human rights people and as far as I know there was no outcome of the case so far and OMV sold the stake of this company again they did not work there any longer they did not operate anything it was just a financial stake of that to finish this so sometimes it comes as a price you have a financial stake in a company and then from somewhere comes the accusation that just because of this you are involved into human rights violation that is new for business and that was new for business so it's good that we have forums like this and we discuss this in a multi-stakeholder forum it's important also for the companies for the managers I address it to you and to your field of work because at universities you have to teach that you have people to tell you have to tell the student what it's all about thank you any further questions thank you my name is Barbara Linda I work at the Boltzmann Institute as well and I would just like to share an experience actually in a bit of an unsolved case we did a case study on core labor standards in Tanzania in February and we researched the respect of the core labor standards on tea plantations and actually the situation in Tanzania is like that that well basically it was within the framework of the big EU development project of a FP7 project and we wanted to assess multinational impact on core labor standards and so we're also very much looking at the fair trade standards at the Rainforest Alliance and whether these standards would impact the core labor standards and what we found in Tanzania we had three companies we that opened like the doors for us and two were certified and one was owned by an Indian owner who was not certified who actually opened very generously everything all the fabrics and you just didn't care whether we found anything or yeah there was a big difference between the certified and the non-certified one the situation was that way that the trade unions were actually there but they were not they didn't have the capacity and they were also kind of a bit corrupt if we had the impression what the trade union did and what was very good is they set up kind of women's commissions and they were very strong and they represented the interests of the workers but they were like other problems because many workers were casual workers they were not employed so they were not represented by the trade unions and not covered by the whole system so the trade unions would have some kind of entry points but didn't get a grip on the workers and the fair trade and the rainforest alliance was very good in selling for the European market but actually it didn't really trickle down to the workers so what they did is they did these women's commissions which were kind of effective but yeah for us it was interesting to see that whether trade unions nor corporate responsibility initiatives were very effective actually it would need an enforcement of labor laws and more tripartite dialogue Anybody of you who wants to react to this comment or are there any further questions? My name is Lambert Semota I'm from African and Ethnic Minority Advocacy Center My question goes to Mr. Wolfgang Kross There are situations when you have a three-party arrangement you have the state you have the community and then you have the the oil company and then the state grants the oil company oil exploration license or extraction license within a community because of corrupt dealings the community is adversely affected by OSP within the environment and they have no control over what happens within the environment and they cannot go to the state because the state has gone into some covered arrangement with the state because of corrupt dealings so in such situation what happens to the community that have no control over such to change anything they are just living there and their life have been destroyed because of OSP over the years actually from Nigeria and this is more like practical thing that I have seen over the years we know what happened between BP and the American government because of this field that happened within a short time I know how much that was spilled out because of I don't know within few months of OSP but this has happened for over 50 years in Nigeria so I want you to throw some light on that one I think we are touching here a very important point and it's a historic it's a big historic mistake definitely and it goes back really to time when we had no responsible business in parts of the world and this goes back this is a historical for me as I see from my experience is a historical point because we have to see the overall historic development and wealth of the West versus the rest of the world it did not start in Nigeria it started already hundreds of years with many many other things before and actually we are hopefully we are now further advanced in our overall way how we treat the world I would not nail it down on one company I would not nail it down to do the oil business I would not nail it down on the on the any other fashion business or you name it it's about the overall ethical behavior and the point is what I saw and this is my optimism and that's why I'm always optimistic giving my view also to my family and my children that I say actually I see I see the sun on the horizon because a lot of people have understood that the way we treated the world the way we treated each other this has to change and is going to change and now I see people sitting together in at the OECD I see these clever smart educated people from the African Union they're challenging us the oil industry very much but they are very very supportive supportive in implementing reasonable ways forward and you are absolutely right it's not acceptable that government taking the money that government are corrupt and taking money not for the communities and not for their people just taking for themselves and their cliques that's not acceptable and I tell you that I would say our member companies are well aware and our member companies have sometimes decided in the last year not to go into certain deals because of this but now in OECD together with World Bank together with your countries there is a discussion going on how to solve this step by step the point is it's not until tomorrow it's not in five years time it's a step-to-step approach our children will be involved and our grandchildren will hopefully then finish the exercise yeah thanks thanks for your intervention and I think to a certain extent I think I share Wolfgang's optimism but I also see it a slightly different way first of all in terms of the the theme of this panel when you have collusion between active collusion between the company and the state most likely a non-judicial company-based grievance mechanism is not going to get you to a solution and I think that's actually really where panel where the first session comes in that's where transnational justice is incredibly important and certainly you know in the example of your own country that some communities have gone to the U.S. they've gone to the U.K. they've gone to the Netherlands following country's home to file claims there because they don't have faith in their own system to handle it and they see that collusion and that problem so the need to keep the courts open for that kind of thing is really important and I should just say as a brief corrective from the previous panel despite what the honorable judge said in the U.S. it is still the case that you can sometimes you can sometimes hold parent companies responsible for things that they were involved in and the avenues have not been all closed down by the Supreme Court but I don't think it's not it's not just historic I wish it were just a historical point but I mean you know major multinational companies are entering into exactly these agreements still they're still fighting mandatory transparency tooth and nail in the United States that would shed a light on these financial dealings the you know global witnesses exposing things like the OPL 245 scandal in Nigeria where Shell paid a billion dollars knowingly indirectly to the former oil minister and state governor in order to get control of an oil block and that happened in the last decade or so so the need for hard accountability is there and transnational justice as a backup to national level justice I don't see a replacement for it so yeah thank you for for raising that well thanks a lot actually this was a very nice concluding statement of our panel I went to thank all of you here on the panel we had a lot of really good discussions and I would like to thank you for for listening to us for discussing with us and contributing it was a really good discussion