 Good morning. Dear colleagues, I'm Marta Marín. I am the Basque Delegate to the European Union and I am delighted to welcome you to the delegation today. We say it's the obvious relation and long lasting collaboration with Globernance and the Basque country. I would like just to mention two initiatives that the Basque government is working on recently. And I will mention the implementation of the global agenda of the SDGs. And I recall that SDG 11 calls to make cities and human settlements inclusive, safe, resilient and sustainable. And SDG 16 calls to promote peaceful and inclusive societies for sustainable development, to provide access to justice for all and build effective, accountable and inclusive institutions at all levels. This is a recognition of the role of local regional governments in their implementation. And this is as well a recognition of the need of anticipation of partnership with business sector and social stakeholders. Therefore, we have adopted recently, just before the summer break, a Basque policy coherence framework to accelerate the sustainable human development policies to increase effectiveness and accountability for all levels of governments and administrations in the Basque country. And this policy coherence framework is a guiding principle for policymaking, not only at internal level, but as well at international level for us. And secondly, another key aspect that we are working on together with the European Commission at that time is the revision of the GDP as a global benchmark set of indicators. GDP, we think, is now obsolete. And we think that it's not really measuring the coherence of policies, of the progress of society, of cohesion societies. And we think that the new set of indicators, among them human rights in business, is needed to measure and to benchmark social progress in our societies. Therefore, we call for a social progress index to be implemented, to be a scale-up, and we are working in this initiative as well in the Basque government. Today, our task is obviously hosting you, but as well learning from you, and helping you to disseminate the very deliverable results of the project. Thank you very much for your attention. I wish you a fruitful meeting, and I will be with you whenever you need. Scarikasco, thank you. Good morning, and welcome to the final conference of the Human Rights and Business Project. My name is Katerina Yanivas. I'm the project manager of this project. We're looking forward today to discuss with you the removal of barriers to access to remedy for corporate-related human rights abuses. On behalf of the Globernance Institute for Democratic Governance, I would like to begin by thanking our hosts, the delegation of the Basque country to the EU, for their hospitality and collaboration today. In particular, to the delegate, Marta Marín Sanchez, also to the staff, Edurna Garín, Camila de Palsa, Azqueta, and Arate Lesarce. To all who are here, thank you. Special thanks as well to the European Commission Civil Justice Program for their call and for their support, without whom we wouldn't be here today for making this project possible. Welcome to each of you here with us today in Brussels, as well as to those joining us via live streaming. We look forward to engaging you in a truly global dialogue as we have people joining us today not only from across EU member states, but also from around the world. So despite the time zones, thank you for those of you who are watching, from New Delhi to Mexico City, from Johannesburg to New York. For those watching live, you are invited to participate, share your thoughts, post your questions using Twitter, which we'll have behind us today. You'll be able to see as well, for those of you here. You can tag us in your comments. Our account is Human Business EU, or use the hashtag Human Business EU. Our moderators will be following the Twitter feed throughout the panels to incorporate your questions in our shared debate after the speakers' interventions. For those who have previously sent us feedback through your online registration, we would like to thank you, and we hope that the discussion today provides some answers to some of your queries. In the next few moments, what I'd like to do is share with you some of the context from around today's event, information about our project, why we're here, how and why our work began, where we are now, what are the next steps, and discuss what we hope to accomplish with today's agenda. As many of you might recall, in April 2013, a factory collapsed in the Savar sub-district in Bangladesh, killing more than 1,000 people and injuring thousands more. Subsequent reports revealed substandard working conditions, overcrowding, and shoddy construction of the factory itself. This tragic loss of life and limb was preventable. Remedy for Victims was largely handled through informal and non-judicial means. The Rana Plaza Donors Fund was created to collect voluntary contributions to the victims and their families with the International Labor Organization as the sole trustee. The Fund was created as a humanitarian effort and was not intended to suggest or imply legal responsibility by any of the named or unnamed contributing entities. Furthermore, a confidentiality agreement was accorded surrounding the amounts contributors appropriated to the Fund, many of which are company brands based here in the European Union. Rana Plaza, while not the first tragedy of its kind, was a call to action. In the same year, we formed a research consortium and were awarded the Civil Justice Action Grant by the European Commission Directorate General for Justice. Our project began the following year along three main work streams to research, teach, and disseminate solutions for business and human rights challenges for cross-border litigation in the European Union. The particular focus of our project concerns the third pillar of the United Nations' guiding principles on business and human rights. Greater access by victims to effective remedy, both judicial and non-judicial. Our research focused on the following question. How do we provide justice in the European Union for human rights abuses committed abroad by EU companies? We believe the solutions lie in the removal of barriers, both legal and practical, to provide effective access to remedy. Today, here in our final conference, we will be outlining some of our research conclusions and collectively debating the way forward. The Human Rights and Business Project is coordinated from San Sebastian, Spain, and our research consortium is composed of over 20 leading academic scholars and practitioners across six EU member states. Our research consortium includes the University of Navarra, the Frankfurt Society, the University of Castilla-La Mancha, the University of Jaume Primero, the University of Rovira Yurgili, the Case-Fan-Damn Consultancy, Ludwig Boltzmann Institute of Human Rights, Tilburg University, Utrecht University, Leiden University, Public University of Navarra, the Law Offices of Quatre Casas, González Pereira, Faculty of Law of the University of Rijka. Since the commencement of the project, we have held four training sessions. The first in San Sebastian in February 2015, the second in Tilburg in June 2015, the third in Vienna in December of last year, and earlier this year in May, we held our final training session in collaboration with the Dutch EU presidency and various civil society organizations in Amsterdam. All project deliverables, including past training session materials, speaker presentations, videos, podcasts, as well as a virtual library on business and human rights are all available freely on the project website, which is broadcast behind me, www.humanrightsinbusiness.eu. From the project website, you may also freely download the materials that we have distributed to you here today. This includes the executive summary of our research results. The full text will be available as a freely downloadable e-book in the next few months. The link will be made available from the project homepage. For all of you who have registered online, click on the notification when that goes live. In parallel to our research results, we have also disseminated today a practical handbook for civil society organizations and human rights defenders. The handbook is freely available for download in English, Spanish, French, and Portuguese. We invite each of you here today to share these links on your respective websites or in your networks. For those present today, we have produced also USB sticks PDFs of the summary research results as well as the handbook in all four languages, particularly those NGOs here present today who work abroad, who work particularly with groups that may not have high-speed internet access. We ask you to grab as many USB sticks as you'd like and distribute them throughout your work. Our research results are the departure point of our program today. After opening remarks by Professor Yutvan Kulster, members of our research consortium who are responsible for coordinating the various sections of our final deliverables will set out the essence and key findings of our results as well as the contents of the handbook. After the coffee break, we will hold two panels to contextualize our theoretical analysis into practice. In the morning panel, we will consider the business perspective with a particular focus on the corporate duty of care and human rights due diligence. We will consider the legal and public policy perspective. And to close the day, Heidi Hautala, member of the European Parliament will close with concluding remarks. On a last and personal note, I would like to especially thank my colleagues in the research consortium for a few years of very hard work. I've learned very much from every single one of you and I think and expect great things to come with a network that we've established. They say that working in the area of business human rights is like watching grass grow while I hope that we've planted some seeds and that those of you who are today and all really who have any interest in this field will take it to the next level. What we need is multi-level and multilateral governance and participation and interest by all. So hopefully the research that we produce translates into some acts. And with that said, it is my honor to introduce you to our keynote speaker today. Professor Yurt von Kulster is an alumnus of the College of Europe, independent legal practitioner at the Brussels Bar. His boutique practice focus is on conflict of laws, private international law, EU and international regulatory law, especially environment, and international and EU economic law. Yurt is full professor in the University of Loven and head of Loven's law department of European and international law. Yurt is also senior fellow at Loven Center for Global Governance Studies and on the indicative list of WTO panelists. Professor von Kulster is a visiting professor and senior fellow at Monash University's law faculty in Melbourne, visiting professor at the China-EU School of Law in Beijing, visiting professor at King's College London, and adjunct professor at the Brussels campus of American University. He was previously a visiting lecture at Oxford University, called to the bar in 1999, having worked in a law firm previously, obviously a great experience. We're looking very much forward to his thoughts. Welcome and thank you. Thank you. That's always humbling to hear such a long list of where's F5? Someone who speaks Spanish may have to help me pull up the full slides. Thank you. I'll stay close to the microphone because I realize there are people of course who might otherwise not hear me, even though I could shout and they'll probably hear me there on your weeks. If you teach a lot to a lot of students then the voice tends to carry far. First of all, thank you very much for the invite. It's exciting for me to speak here, also to be asked to speak close to home normally and you heard that from the list, but was just read, I tend to travel long distances, so to be asked to speak at Brussels, living in Lerven is a great treat. Sadly though, it also means that I've had to rush in, which explains why I'm a bit tired already. I had a bit of domestic social responsibility at home. One of my children has her birthday and my wife is abroad for a number of weeks, so I had to make a good breakfast and everything else and then get here, but it was all wonderful. And also sadly, after my talk I'll have to rush back to Lerven to do a bit of, I suppose, academic or educational social responsibility because I have students waiting to hear whether they've passed their research or not. And certainly indeed, I won't be able to take part in your discussions, but I have, with many of the authors of this report and many of the people involved in the study I've met them personally throughout the years. I've certainly learned a great deal from many of the things that they've been writing and you will see that in the report, you can already see it in the executive summary. This is really a very insightful complete thought provoking. Also I think ambitious in its attempts to try and remove some of the challenges with corporate human rights abuse or whatever one calls it. And I think you'll find it a very exciting study, but also hopefully today's conference or workshop or training will hopefully also enable the authors to pinpoint some more of the lacunae or perhaps challenges in not lacunae challenges in their continuing work. So I'm sure that they're very much looking forward to all of you engaging rather than listening. And that goes for me as well. So if I say something during my short presentation that provokes you or that shocks you or that disappoints you, please let me know immediately. I should say of course that this is a very exciting worldwide global topic. I think it's a topic that speaks to a lot of you probably in your family surroundings. I'm sure if you have at some point discussed why there's such a thing as a four euro t-shirt advertised in the streets of Europe corporately as well. When I was in Melbourne in the year in July we had an interesting exchange of thoughts probably with a lot of people working in the mining industry, which of course in that part of Asia Pack is very interested in and also working quite actively on how they could promote their own compliance in terms of not just human rights but certainly also environment, occupation health and safety, etc. I have decided to, I'm afraid, ignore the instruction to give you solutions or perhaps attempts at solutions. I'm going to give you questions. This is an image from a US TV show called 20 Questions. It's a format that the family and I have had to resort to in the summer when the kids tried to explain a game that they invented themselves and we just frankly couldn't get it. We had great fun with the kids finding it hilarious that the parents just couldn't grasp the seemingly easy rules of this particular game. So we resort to 20 questions and I'm going to ask you not 20 questions but certainly probably four or five. Firstly perhaps I think it might be important to point out that of course we shouldn't be too pessimistic and negative about business engaging in human rights, social and environmental compliance. This is very much a truism but I think it's definitely true that if there is going to be solution to human rights violations, environmental issues, social inequality, etc. then we have to and we are engaging business in trying to find solutions. The judge Jacobs put in his Kio Bell, this was a court of appeal which then later on went to the United States Supreme Court. He noted in his opinion in the Al-Bang decision in 2011 he put in examples of corporations in the atrocity business are few in history and I think he's right. I'm not saying necessarily that forwarded the solution he had to this was correct but he certainly I think he's right in pointing this out and he had few examples, sadly one of companies involved in the Belgian Congo and then the other companies were German corporations involved in the third right. He's right, there are very few and I think that's worth pointing out and I think it's worth pointing out that business is engaged in trying to find solution and I certainly also hope that in the course of this project that you have found that business has been engaging with you trying to find those solutions. Secondly and this is a very tenacious challenge. It links perhaps to some degree to the four euro t-shirt that I meant earlier. This is what I like to call that externalities are in the eyes of the beholder. What I mean by that is that of course when we talk about business transgressing environmental rights, human rights, social rights etc. They very often do so because of international economics they very often do so because they find that they can produce more cheaply, more conveniently in other parts of the world then there's a bit of a chicken and egg issue of course. Do they convince us that we want four euro t-shirts or whatever or is it us as consumers that are quite pleased that we can buy four euro t-shirts but certainly they use the absence of relaxed standards or relaxed enforcement often all those three together in economies and transitions, developing countries etc. to providers with the products and the services that seemingly we are seeking. And of course to the countries involved what to us may seem like a negative externality a 14 year old I think 16 year old even through all of us we would probably argue that a 16 year old should be at school learning either a trade or learning academic insight that is not necessarily the case of course for a number of countries where they may find the same for 9, 10, 11, 12 year olds but where enforcing this or rolling this out across children which would in our societies be at school age is quite a huge challenge and of course they also point out that if they relax some of these standards or if they discourage companies from enjoying these kinds of flexible working conditions etc. that their comparative advantage would disappear and the question then is of course how do we address precisely that. I think the compact which I have on the slide there the incident in Bangladesh, the terrible tragedy in Bangladesh and there's many more of course was already pointed out the EU response to this incident I think goes a long way to explain how big that challenge is so what we did is we rolled out a so called compact with a capital C which up until then was a non-existing instrument of international law it probably still is a non-existing instrument of international law it's not a treaty it's not a protocol it's not even a resolution it's a compact which is almost like a training module it will enable or it will help it will assist it will facilitate industries with making sure that in this particular case occupational health and safety standards in Bangladesh are better complied with. But the then trade commissioner very quickly suggested that it would be a wrong answer to that tragedy to simply say we'll no longer produce at Bangladesh because then of course in one big swoop a large chunk of their foreign currency income would simply disappear so it's a long standing challenge what is exactly an externality what is a comparative advantage what are acceptable comparative advantages and what is the twin role if you like that plays between the developed world and the developing world in climate change for instance this is very often pointed out by China when they say our carbon is your carbon the fact that they have such an abysmal CO2 emissions etc. record is to a large degree down to EU, US and generally western industries producing in China. Embedded carbon your carbon is our carbon and the same with some of those human rights and environmental abuses. Secondly and this is a cartoon which might only amuse conflicts of law this refers to something known as forum non convenience which features in the report so if you're not a conflicts lawyer then you should brace yourself before you start reading. This is an important phenomenon in international jurisdiction because when you say corporations should be responsible for their human rights, environmental and so on general sustainability record in whatever praise they produce then you're basically if they don't hold up to those standards then of course we should like to have an interesting court, an attractive court that can objectively rule on these issues where these cases against those corporations could be heard. So you need to be able to seize a court in the United States the ultimate test for jurisdiction in a court very often is what is called forum non convenience. This is basically where the court will say well there's also the reasons why we could hear this case there are corporate assets of the company involved in our jurisdiction they may even have their corporate seat in our jurisdiction or there's a number of their directors that live in this jurisdiction or that actually carry out their business in this jurisdiction but we still won't hear the case because we would argue, I'm speaking as the court here, we would argue that there is another court that is more naturally suited to hear this case for instance of course evidently the court in the jurisdiction where these alleged atrocities or infringions have taken place. So in that case a court like a US court could say I'm not going to hear the case even though there's also sort of ordinary jurisdiction reasons as to why I could do so and they will dismiss it on the basis of what is called forum non convenience. The EU in their jurisdiction rules don't have generally don't have such a rule. The EU have a very straightforward rule and I'm sure you'll hear this later throughout the day, if you want to pursue an EU based company for alleged infictions committed outside of the EU it's a piece of cake at the jurisdiction level. All you need to do is establish that they have a corporate domicile in one of the EU member states and Bob is your uncle, you can go to that court and they simply cannot refuse to hear the case. Applicable law is something else and I'll come to that later. Inevitably of course this also raises the prospect of Brexit right. Forum non convenience is a common law idea. It's a common law concept. If and when, probably when the United Kingdom leave the European Union they will, they might no longer be bound by at least some of those jurisdiction rules and they will certainly rediscover forum non convenience. How this will work in terms of corporations, but again that would have to be the real, excuse my French, the real, well you would have to I'm not going to speak French, the real, it would have to be extremely opportunistic of course for an industry to say we're going to relocate our business to the United Kingdom simply because of forum non convenience rules and making sure that we will not be easily be sued for alleged infringement. But one might imagine one or two cases where this would have been attractive to those companies in the past. So again in the United States forum policy as well often counts in these forum non convenience considerations. Many of you will have followed the Keel Bell case law in the United States Supreme Court and the follow up cases, the Patheids, Daimler and so on. The policy considerations very much count in that forum non convenience assessment. So you will even have courts ask the foreign office, Secretary of State in the United States, they will ask if I were to assume jurisdiction against corporation X domiciled in the United States would that interfere with your forum policy priorities and if the foreign office were to say yes it would then those courts will be inclined not to hear those cases. 3S political etc. there of course is somewhat thrown out of the window but it is certainly reality in quite a few of those cases in the United States to call the Iotinto case as just one example. It is also part of the current JASTA debate but this is unrelated I think to today's issue, a legislative initiative that is going through the US Congress trying to assist victims of the 9-11 atrocities but therefore also bringing foreign policy considerations into that whole debate. I've mentioned Brexit again it's something that exercises all at the moment I'm not sure whether we should really be concerned about that in the future but I can imagine certainly one or two court cases in the past where the company involved might have wanted to relocate to a non-EU member state had that been easily done. This of course is a target well I want to say with this is and it links a little bit to what I said in my introduction namely businesses being part of the solution but of course also being just one part of the solutions especially in the EU again it's very easy to identify and pursue corporations on the basis of these sustainability issues but of course even if you do pursue them even if you do get a judgment against them of course your ultimate goal is to change things in the field which in these kinds of cases that we're discussing today is not going to be an EU field it tends to be a non-EU field and for that of course you need the corporation, the engagement the energy, the willingness of a lot of those foreign partners, their agencies, their agencies, their ministries etc and that obviously is not always the case partially because of those comparative advantage reasons that I mentioned earlier partially also of course because of the endemic problems with governance, corruption and so on in many of those jurisdictions and I cite here the example of the probicoala case and the problem with toxic waste being done at the Ivory Coast a case that many of you will be familiar with an interesting case for two reasons that I wanted to mention here the first reason is and you can look it up on my blog if you're interested I'll put my blog on the first slide the Amsterdam court a number of years ago gave the company involved a reduction in their sentence because the company involved had a CSR policy so you can read the court saying you should really be punished for X because you've done this export of illegal of hazardous waste, toxic waste even to the Ivory Coast but because I see that you have this brochure that tells us that you are really a wonderful company I will give you a reduction in what I should have normally given you as a criminal sanction that was I thought quite awkward very existence of a CSR policy seems to have bought some time for the company concerned but secondly also in the case of the probicoala I was struck last year I think when I went to was at a workshop in excuse me in Benin and there were representatives of the Ivory Coast environment agency and they were telling us excuse me they were telling us that actually simply even though there has been compensation also issued by English and Dutch courts in that particular case the toxic waste was still where it was put X years before in the very scandal so it goes to show that you know no matter what you try to do from our point of view we will have to engage properly and roll out these kinds of solutions with the authorities in particularly then developing countries finally I think this is my final issue that I want to address this morning this concerns the corporate veil so somehow I managed to find an image piercing the corporate veil it's amazing what Google images will help you do so this chap is the corporate person and his veil is being pierced what does this concern this concerns of course the issue of using a holding company and again a case that is going through Dutch courts and you'll hear a lot about it today I'm sure illustrates this so you use a holding company and then of course your holding company may be listed in member state A and then of course the holding company will have a number of corporations throughout the world that will carry out local business there's nothing suspect about this at all it's called a special purpose vehicle special purpose vehicles are perfectly acceptable perfectly kosher they are there for all sorts of reasons VAT tax simple easy administration and so on in say they are completely innocent but of course special purpose vehicles can be abused evidently and the point about piercing so the point about having these holdings and the special purpose vehicles is that you have a corporate veil in other words that not only do you shield your shareholders from any large suits against them after all the idea of a capitalist system is that you allow people to put money into corporations and to have those corporations act independently but it's also to make sure that a holding company indeed isn't always bothered by also such shenanigans going on with the daughter companies across the world and again in itself that is perfectly fine that's how a modern international global economy is run and for 99% of cases that runs really perfectly smoothly without any hint of abuse but of course sometimes it doesn't sometimes either purposefully or simply objectively there is such a gross violation of a sustainability rule human rights environment social and so on that you may want to pierce this veil that either you may want to go after the actual shareholders or indeed at the very least that you may want to go after the holding company that is sitting safely in its headquarters in member state that's called piercing the corporate veil you'll hear today about how even if it is easy to pursue an EU based company in the EU for activities in their name taking place outside of the EU when it comes down to then deciding what law you apply to that alleged atrocity things are quite a bit more difficult that's exactly where solutions should be found and I think it's exactly in this discussion of what law applies to this piercing exercise that there will have to be or I think there's fruitful ground for at least an European if not an international thinking here of the The Hague process in private international law European if not an international solution to having one unified answer to this and you can see the relevance because if you have to name the shell case which you'll hear about today I'm sure if a Dutch judge were to say how am I going to decide whether the Dutch holding company is responsible for what his daughter companies have done in Mauritania then the Dutch court could say well I'm going to see what law should I use to decide whether a simple lack of compliance or of oversight is enough to say the corporation in itself the holding company is responsible or should there be more than that should it be active collusion should you actually be engaged in these alleged atrocities the outcome is going to be very different and you may find that for instance Dutch law is actually quite might be quite liberal about this in the sense of might quite quickly say I'm going to pierce a corporate veil lack of compliance is enough whilst Mauritanian law might say lack of compliance is nowhere near enough you need to have active collusion so what law you're going to use to decide this is going to have a huge impact on the outcome of your case and a huge impact on the answer to the question can I simply use I should probably say no to this can I simply use can I simply use European law as the benchmark for what our companies are doing outside of the EU then I think is a very very useful or relevant issue and I have it here on this side I mentioned the apartheid case the apartheid case, consider US case concerning a number of corporate usual suspects where in the end court of appeal New York said it's not enough that you can show is that they were even informed of alleged atrocities in South Africa the apartheid regime you need to actively show active collusion of the corporate headquarters with what has been going on in South Africa so I think that would be a very useful point of harmonisation in EU private international law I did give you two warnings namely that if you're not a conflict law is that I should have probably given a warning at the start of my talk particularly that I was going to give you questions more than solutions but I very much look forward to reading the full report also to hearing about the article of today's discussions because going back to my exam duties which I referred to earlier we really need to start thinking out of the box here we can't do this if we're going to stick to traditional answers but neither should we negate some of the more present other realities in this particular context thank you very much for having me here and for your attention, thank you thank you very much Professor we might have maybe just one minute if we don't have one question for the professor as we invite our researchers to come up no? well then what we'll do then is if our research and search members can take to the stage we'll begin in just two short minutes