Closing the Governance Gap
Chapter 9: Conclusion
An important element of the third pillar of the Guiding Principles, ‘Access to Remedy’, is access to legal remedies. Yet substantial obstacles still remain in accessing legal remedies for legitimate cases involving business-related human rights abuse such as: the doctrine of separate corporate personality which enables the use of corporate group structures to facilitate the avoidance of accountability; the dismissal of home country suits on grounds of forum non conveniens and other grounds of abstention; the difficulties in enforcing host State judgments following such dismissals; the costs of litigation and claimants’ difficulties in securing adequate legal representation; the lack of resources for host State prosecutors to investigate and initiate criminal proceedings relating to allegations of individual and corporate human rights abuses. Since the publication of the Guiding Principles in 2011 the position with regard to access to remedy has actually deteriorated, and the contribution made by home State legal proceedings against TNCs has been almost completely overlooked in the NAPs that have been produced to date. This regression has been most pronounced in the US, although the change to the costs regime introduced in the UK in April 2013 will have an adverse impact on such cases in the UK. After the high water mark of ATS claims in 2009, with the high profile settlement of the Wiwa claim, we have seen first the assault on corporate liability under the ATS in Kiobel 1 in 2010, followed by the emasculation of the ATS by the Supreme Court in Kiobel II in 2013.
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