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7719 results in Intersentia

Page 209 of 386

  • A Defence of Direct International Human Rights Obligations of (All) Corporations

  • from Part I - The Convenience and Possibility of Adopting a Treaty on Business and Human Rights
  • Edited by Jernej Letnar Cernic, Nicolás Carrillo-Santarelli
  • Book:
    The Future of Business and Human Rights
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 33-62

  • Summary

    INTRODUCTION

    One of the most challenged and discussed ideas in the evolving field of business and human rights, which has been particularly challenged in debates about a treaty on that issue, is the one that espouses that corporations must have direct international human rights obligations. That is to say, that international law ought to directly regulate human rights obligations of their own.

    Challenges to this notion rest, at first glance, on theoretical, policy and legal arguments. The former rest, for instance, in the belief that it is States who are properly addressees of human rights obligations, and that imposing burdens on corporations could wreck the human rights edifice. Policy considerations point out things such as the difficulty of coming up with an adequate international system of supervision of corporate conduct or that the time is not yet ripe for imposing duties on corporations, given their reluctance and the opposition of developed States, the reason why insisting on the creation of those obligations could undermine efforts to come up with clarifications and developments about crucial aspects, such as extraterritorial State obligations, which are not dependent on the existence of direct corporate obligations. Finally, some challenge the legality of those obligations based on notions of subjectivity, which is apparently lacked by corporations under contemporary international rules.

    In light of those objections, voiced even by some NGOs, the purpose of this chapter is threefold: first, to demonstrate that the challenges are, ultimately, not about insurmountable theoretical, policy or legal obstacles to direct corporate human rights duties but rather – perhaps unconsciously so – due to fear, selfishness or a lack of imagination; secondly, to argue that corporate duties already exist to some degree, and that complementary standards need to be enacted for individuals to be fully and effectively protected from corporate abuses; and finally, to draw attention to the fact that direct obligations may be a necessary dimension – not the only one – to tackle a problem that has to be addressed: that corporations can and do participate in human rights violations.

    The latter should actually be treated as the starting point and the underlying problem, given the legal and ethical implications and demands, both in the sense that victims be protected and abusers held accountable.

  • The Silk Road Revisited – Money Transactions Inside the Bitcoin System

  • from Part III - Digital Formation of Contract – More Virtual and More Formalised
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 237-260

  • Summary

    ABSTRACT

    The chapter sets out to show a chain between the many aspects of Bitcoin as a regime of exchange and contract-based transactions, and to lay a basic groundwork of understanding for Bitcoin as a framework for transactions. Relevant aspects are Bitcoin’ s status as money, the different and functional qualities that it shares with other types of money, its distributed technical nature and structural integrity, as well as its ideological roots incorporated in technology. An exciting addition onto the open final link of this chain is the advent of new decentralised Bitcoinbased marketplaces where the goal is to include the transactions themselves inside Bitcoin's ‘blockchain’ – the foundation of this digital regime of exchange. Historical lines are drawn between Bitcoin and the ancient cultures of Mesopotamia in 3000 BC. While the attributes of the monetary system used in the Cradle of Civilisation are the antithesis of Bitcoin when it comes to the dichotomy of geographical centralisation/decentralisation, it evinces strong similarities concerning the relative unimportance of material tokens. A further shared trait is traced, one that is likely to prove revolutionary in the future: the intimate connection between the monetary system itself and the transactions performed using it.

    The Silk Road was launched in 2011. That is to say, this was when an online marketplace that called itself the ‘Silk Road’ was launched. The principal items on sale at this digital market were, unsurprisingly, various illicit substances, and the parties frequenting this marketplace settled their transactions by a direct transfer of something called ‘Bitcoin’. In this online version of buying drugs for cash in dark back-alleys, there were no banks or bank-backed payment systems involved, only this money-like thing called ‘Bitcoin’, which purported to sustain its integrity upon a technology without a central point of control. Now, years after the new Silk Road was shut down, Bitcoin is being used by wholly legal online stores as well as some banks and even state authorities.

    HIGH PRIEST NAKAMOTO

    The key realization was that there’ s no difference between modern culture and Sumerian. We have a huge workforce that is illiterate or alliterate and relies on TV – which is a form of oral tradition. And we have a small, extremely literate power elite … who control society because they have this semimystical ability to speak magic computer languages.

  • Business and Human Rights in the Americas: Defining a Latin American Route to Corporate Responsibility

  • from Part III - Regional Approaches
  • Edited by Jernej Letnar Cernic, Nicolás Carrillo-Santarelli
  • Book:
    The Future of Business and Human Rights
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 163-184

  • Summary

    INTRODUCTION

    Since the endorsement of the Guiding Principles on Business and Human Rights (hereinafter the ‘Guiding Principles’ or the ‘UNGPs’) by the UN Human Rights Council in 2011, several voices have called for the development of binding standards to regulate corporate conduct in the field of human rights. Although businesses generally tend to have a positive impact on social and economic development, the negative consequences of their activities need to be addressed in order to protect human rights, especially of the most vulnerable groups in society. An important global movement in favour of corporate responsibility in the field of human rights, based on the UNGPs and other international instruments and led mostly by some developed economies, has nevertheless had a relatively low impact in the areas where such rules are required the most: in developing countries. It is precisely in some of these countries – and notably in Ecuador, where the activities of national and foreign oil companies have had a severe impact on the environment and local communities – that such abuses have led to a call to develop stronger human rights obligations for corporations.

    Different areas of Africa, Asia and Latin America are among the regions where such standards have yet to make an important – or even significant – impact. Particularly in the case of Latin America, the UNGPs are just starting to become referred to by governments and companies, despite the support received in the process leading to their adoption in 2011. This situation has been generally reflected in the process related to the establishment of the Open-ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights, and later on during its two initial sessions. It is therefore necessary to scale up the efforts in the region to ensure that corporations respect human rights and that States are aware of their duties under international human rights law; such efforts, however, need to be implemented both nationally and regionally if progress is to be achieved.

    This chapter, divided into three substantive sections, will first address the position of Latin American States regarding the treaty process, including during the initial two sessions of the Intergovernmental Working Group.

  • A Convention or a Recommendation? The Experience of International Labour Legislation

  • from PART IV - Lessons from other Regimes of International Law
  • Edited by Jernej Letnar Cernic, Nicolás Carrillo-Santarelli
  • Book:
    The Future of Business and Human Rights
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 253-272

  • Summary

    INTRODUCTION

    The question whether to opt for a legally binding instrument or not, i.e. a treaty or a resolution, has always been a difficult one for decision-makers in public international law. Our current task of evaluating the decision taken by the United Nations Economic and Social Council (ECOSOC) to formulate a Treaty on Business and Human Rights is, therefore, not a new one. We can recall the development of international human rights norms at the UN, for instance. The General Assembly, in its early years, decided to adopt an International Bill of Human Rights by opting for a non-binding Universal Declaration of Human Rights first. The binding Covenants followed later. International labour legislation, represented by the adoption of international labour standards, has a long history in facing this question. We may learn a lesson from the experience of the International Labour Organization (ILO) when considering the issue of the UN instrument on business and human rights. It is not only significant for its long history, but the ILO instruments are of particular importance to the discussion on business and human rights because they set labour standards, which largely contain human rights principles and which are jointly formulated by, and partly addressed to, non-state entities, namely employers ‘organisations or corporate entities. In other words, the prospective legally binding instrument is not operating in a vacuum, but has been preceded by a large number of ILO Conventions and Recommendations, regulating business and human rights.

    The following sections first outline essential features of international labour standards in their adoption process (Section 2), in the importance of constitutional obligations under Article 19 (Section 3) and in the ‘division of labour’ between a Convention and a Recommendation (Section 4). A parallel is drawn between such a two-tier system and the proposed UN instrument, with some preliminary findings (Section 5). The analysis then turns to the ILO's Tripartite Declaration on Multinational Enterprises and explores its strengths and weakness, comparing it with the Organisation for Economic Co-operation and Development (OECD) Guidelines on Multinational Enterprises (Section 6). A general conclusion is that the existence of a follow-up mechanism is most important in making the original instrument work.

  • Voluntary vs. Binding: Civil Society's Claim for a Binding Instrument

  • from Part II - Critical Analyses Of A Treaty On Business And Human Rights
  • Edited by Jernej Letnar Cernic, Nicolás Carrillo-Santarelli
  • Book:
    The Future of Business and Human Rights
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 139-160

  • Summary

    INTRODUCTION

    The initiative towards a UN ‘Binding Instrument on Transnational Corporations [hereinafter TNCs] and other business enterprises with respect to Human Rights’ has been strongly driven by civil society organisations worldwide. Although the views and contributions of civil society on the specific content for the proposed treaty are rich and diverse, they share the common claim for a transition from the current voluntarist regulatory trend of the human rights system to an obligatory legal framework. This claim constitutes a unifying and solid pillar in civil society, the same that gave birth to the Treaty Alliance, a coalition of more than 1,000 committed individuals, organisations, networks and campaign groups around the world joining to collectively organise advocacy activities in support of developing a binding instrument to address human rights abuses committed by TNCs and other business enterprises.

    Departing from their perspective as civil society actors actively participating in the process, and crossing the borders of academic research, the authors of this chapter will explain the recent historical and political process behind the treaty initiative. Along this historical account, they will introduce some of the main arguments supporting the demands of civil society and the main agreements of the Treaty Alliance regarding the content, nature and form of the future international binding instrument. They will also highlight the benefits that the process has already delivered for those suffering the consequences of businesses activities impairing the enjoyment of their human rights.

    THE REASONS BEHIND THE DEMAND FOR A BINDING INSTRUMENT TO REGULATE TNCs

    Non-governmental organisations (NGOs), civil society organisations (CSOs), and social movements have been denouncing corporate human rights crimes and calling for international regulation of the activities of TNCs and other business enterprises since the 1970s. The increasing size and power of, and complex transnational structures developed by, corporations during the second half of the last century, accompanied by high-profile cases of human rights abuses by TNCs as well as collusion between TNCs and governments, increased public attention on the need to close existing gaps in human rights protection and accountability through binding international law. Notorious cases such as the Bhopal gas tragedy of 1984, the Chiquita case in Colombia in the 1990s, 6 and the more recent 2013 Rana Plaza disaster have shown how TNCs can impair the realisation of a wide spectrum of human rights.

  • Conclusion

  • Edited by Jernej Letnar Cernic, Nicolás Carrillo-Santarelli
  • Book:
    The Future of Business and Human Rights
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 299-306

  • Summary

    What the future of business and human rights will be has been one of the most exciting debates in today's global arena. Victims from all parts of the world have been demanding greater corporate accountability for human rights and more effective and efficient access to justice. Rather than presenting one single conclusion reflecting an agreement of the authors of the different chapters on some ideas, we consider it appropriate to acknowledge that the different perspectives found therein reflect the ongoing diplomatic and academic discussions on central aspects, ranging from questions as to whether it is possible or necessary to adopt the proposed treaty on business and human rights, to those related to the content that such instrument or alternative sources of hard or soft law should include, which categories of corporations they ought to address, and which developments taking place in other normative regimes or regional systems can inspire normative processes. It is necessary to acknowledge and allow for a pluralistic debate on the future of business and human rights.

    Nevertheless, such disagreements should not be construed as absolute, insofar as there is a public consensus that whatever normative development ends up occurring and succeeding – be it new negotiations or simply the concrete implementation of the UN Guiding Principles – the protection of individuals from corporate abuses should be at the centre of that dynamic and its underlying policies and aspirations.

    Granted, some actors, including perhaps those representing corporate and economic interests from certain State delegations and other subjects, may have an interest in thwarting a treaty negotiation without openly expressing why, while publicly declaring that they deem a treaty inconvenient for a variety of fabricated reasons. Some have even argued that the treaty process has undermined the global ‘consensus’ reached at the time of the adoption of the Guiding Principles. But others legitimately and honestly consider that the adoption of a treaty could hinder or weaken existing guarantees and their natural evolution.

    Conversely, some argue that the regulation of direct corporate obligations, or a clarification of State duties – extraterritorial and otherwise –, are necessary for the protection of individuals to be strengthened. This is so given the gaps and limitations of prevalent contemporary human rights assumptions, still largely based as they are on State obligations and voluntary corporate standards.

  • Digital Contracts in Global Surroundings

  • from Part II - Institutional Framework – Platforms, Regulation Issues, Global Surroundings
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 49-86

  • Summary

    ABSTRACT

    Currently, questions around Internet jurisdiction – in a general sense – are gaining an unprecedented level of attention. Yet, progress is both slow and limited. This chapter argues that the most significant obstacle for progress is found in the fact that our current thinking on jurisdiction is largely dominated by, and rooted in, notions of territoriality. The problem is that it is not always easy – or indeed possible – to determine where (in real-space geographical terms) events take place online. Thus, this chapter advances an alternative. More broadly, this chapter aims to bring attention to several themes of central importance for digital contracts in global surroundings. Apart from the already mentioned reliance on territoriality, those themes are: (i) that the Internet cannot be allowed to be a lawless space; (ii) that cross-border online interaction fulfils a valuable function; (iii) that we presently are experiencing a state of ‘hyper-regulation’ and (iv) that the role of contracts has increased with our use of the Internet. This chapter is also aimed at bringing attention to important considerations of the extent to which we uphold party autonomy in the context of choice of forum and choice of law clauses online. In addition, the prevalent ‘targeting’ focus is discussed and analysed in detail.

    INTRODUCTION

    The world is changing dramatically and rapidly due to advances in information technology, in particular the Internet. But despite these changes, the central role of contracts remains. In fact, it seems the role contracts play in our lives is increasing. And arguably, this trend is particularly clear in the context of crossborder interactions raising questions of which court(s) may claim jurisdiction, and which (country's) substantive law will govern the interaction.

    This chapter commences by examining this theme and four other clear themes discernible in digital contracts in global surroundings, namely:

  • – that the Internet cannot be allowed to be a lawless space;

  • – that cross-border online interaction fills a valuable function;

  • – that we presently are experiencing a state of ‘hyper-regulation’; and

  • – that there is a strong focus on territoriality.

  • Contracts in the Infosphere

  • from Part IV - Development and Implementation of Contract – More Digital, More Liquid
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 263-278

  • Summary

    ABSTRACT

    As information machines become increasingly autonomous, not only partial and predetermined aspects of contracting are delegated to them, but also the very deliberations pertaining to whether to enter a contract, with whom, and with what content. After considering the different aspects of autonomy, I argue that the use of autonomous contracting agents involves the delegation of cognitive tasks. Consequently, such agents should be considered the real authors of the contracts they conclude. Not only do they exercise discretion in contracting, but they also have those cognitive states that are relevant to the contracts they form (beliefs, goals and intentions). Consequently, the rules that apply to human agents should in principle also apply to autonomous digital agents. This does not presuppose that digital agents should be granted legal personality, understood as the ability to bear rights and duties, since the normative effects of their activity will fall upon their users. Finally, I consider some of the legal and social issues that may result from the widespread delegation of contracting to digital agents.

    INTRODUCTION

    Contracting takes place today in a new socio-technological space, the so-called infosphere, based on digital information and information machines. In such a context, several contract-related tasks are either accomplished with the support of machines, or are completely delegated to them. As information machines become increasingly autonomous, not only are partial and predetermined aspects of contracting delegated to them, but also the very deliberations pertaining to whether to enter a contract, with whom, and with what content.

    I shall address some emerging dimensions of contracting in the ICT-based infosphere, focusing on artificially intelligent contracting parties.

    First, I shall address the embeddedness of contractual activities in active, responsive, and connected informational environments. I will argue that in such environments a vast expansion of contractual interactions is likely to happen, since contracting enables distributed autonomous collaboration between humans and artificial entities, and between such entities themselves. Contractual relations will be entered into by both virtual artefacts (e.g., online bots) and physical artefacts (e.g., autonomous cars), as interactions with physical artefacts take place through their interconnected digital interfaces.

    I will then focus on how contracting may take place with and between Autonomous Contracting Agents – ‘ACA’ s. I will characterise the idea of autonomy as including three aspects: independence of action, high-level cognitive skills, and adaptive/teleologic architecture.

  • Crowdfunding in Europe

  • from Part II - Institutional Framework – Platforms, Regulation Issues, Global Surroundings
  • Edited by Stefan Grundmann
  • Book:
    European Contract Law in the Digital Age
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    09 February 2018, pp 103-134

  • Summary

    ABSTRACT

    This chapter studies the multifaceted nature of crowdfunding and focuses especially on the investment-based model, particularly the area of so-called ‘securities crowdfunding’ and its regulation in Europe. It starts by enunciating a general concept of crowdfunding and identifying its defining characteristics. The different business models falling under the general concept are then examined, in order to determine the different legal natures of the key underlying transactions in each of the models. The chapter then focuses on investment-based crowdfunding, describing the different structural options used in the practice to implement these transactions, and directs its attention to securities crowdfunding, the most relevant type in this category. Afteranalysing the complex realms of regulations, both at EU and a national level, that could potentially affect this specific type of crowdfunding, the chapter finally concludes by advocating regulatory intervention by the European Union in this field in order to simplify the current complex situation.

    INTRODUCTION

    Crowdfunding has become a very popular alternative source of funding in the last few years. Its success is partly due to the difficulties faced by small and medium-sized enterprises, start-ups and cultural projects to get finance in the context of the recent global economic crisis. The most common sources of finance such as bank loans, retained earnings, equity or venture capital, are often difficult to obtain for these types of initiatives, and other sources more frequently associated with small and innovative businesses, like ‘business angels’, money from family, friends and acquaintances, or public subsidies in the case of cultural projects, are oft en insufficient. This traditional financing problem has been exacerbated at the beginning of the twenty-first century by the global crisis, as a consequence of which all financing channels have been strongly restricted. Banking finance has diminished dramatically and has concentrated on wellestablished, low-risk firms, while venture capital and business angels have also reduced their activity in this context. Family, friends and acquaintances have been less able to help, since the crisis has impacted on their own budgets, and public subsidies have been sharply reduced.

Page 209 of 386