Edited by Rafael Leal-Arcas and Jan Wouters
Chapter 17: Access to an effective remedy in business-related human rights violations in the context of oil and gas disputes
European Union oil and gas companies occupy a significant share of the extractive industry, and have a significant global reach. While this can bring benefits for communities by creating wealth and jobs, adding value and providing services, sometimes corporate activity can have an adverse effect on people and the environment. When this happens, the people whose human rights have been affected often seek reparation, and expect the company to be held to account. Victims have increasingly sought a remedy in the home state of the parent company either in relation to its direct acts or the unlawful conduct of its subsidiary in the host state. Whilst there are some isolated success stories, evidence suggests that victims choosing court litigation within the EU or in other home states such as the US, continue to face factual and legal challenges associated with court litigation. We place the debate within the EU’s commitment to business and human rights. The European Commission has endorsed the ‘United Nations Guiding Principles on Business and Human Rights’ (UNGPs), and has committed to supporting their implementation, encouraging companies to adhere to internationally recognised human rights, guidelines and principles. In relation to the oil and gas sector, the European Commission issued a non-binding ‘Oil and Gas Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights’, advising on how to implement the corporate responsibility to respect human rights in daily business operations. The chapter argues that, for several reasons, the ‘Oil and Gas Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights’ does not go far enough in improving the access to remedy. Specifically, this chapter advocates that due to the unique legal and business structure of oil and gas companies’ engagement, for those victims of business-related human rights violations in the oil and gas sector, unilaterally binding alternative dispute resolution processes may complement a state’s duty to offer an effective access to a remedy for victims of business-related human rights violations, and improve the effectiveness of the UNGPs. Keywords: United Nation Guiding Principles on Business and Human Rights, UNPGs, European Union law, Oil and Gas Sector Guide, access to justice, access to effective remedy, Alien Tort Statute, unilateral binding arbitration, non-judicial grievance mechanisms, alternative dispute resolution.
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