Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: updates on litigation in the Doe v. Nestle case; a private members’ bill in the United Kingdom that would expand the scope of the Modern Slavery Act; and an easing of U.S. sanctions against Sudan.

  • As noted previously, the U.S. Government released its National Action Plan on Responsible Business Conduct on December 16. There continues to be lots of debate among key stakeholders regarding the plan, with many stakeholders both expressing concerns that the Plan did not go far enough while also raising concerns that the Plan reflects a range of activities that may come under scrutiny during the Trump Administration. Germany, Switzerland, and Italy also released National Action Plans on Business and Human Rights in December.
  • The name Kiobel is familiar to many who follow litigation regarding human rights in the United States. Esther Kiobel was a plaintiff in the Kiobel v. Royal Dutch Petroleum litigation that led to the 2013 Supreme Court decision which established that the presumption against extraterritoriality applies in cases brought pursuant to the Alien Tort Statute. Ms. Kiobel is back in U.S. court, this time pursuing access to documents held by Cravath, Swaine, & Moore LLP, which represented Royal Dutch Shell in the earlier litigation. The documents in question are all confidential documents that Ms. Kiobel had access to while the earlier litigation was pending, but that she, and her counsel, were required to return or destroy when the litigation concluded. Ms. Kiobel is relying on the Foreign Legal Assistance statute to support her request for the documents, which she intends to use to support a case that she is filing against Royal Dutch Shell in The Netherlands. On December 20, the District Court for the Southern District of New York ordered Cravath to turn over the documents, subject to an appropriate protective order.
  • On January 6, the District Court for the Central District of California issued a notice in the in the Doe v. Nestle litigation that it would rule on defendants’ motion to dismiss plaintiffs’ second amendment complaint without hearing oral arguments. The long running case involves claims that Nestle USA, Archer Daniels Midland, and Cargill aided and abetted child slavery in the Ivory Coast in connection with the sourcing of cocoa. A September 2014 decision by the Ninth Circuit Court of Appeals ruled that plaintiffs should have an opportunity to amend their complaint in order to demonstrate that their claims sufficiently “touch and concern” the United States, in line with the standard established by the Supreme Court in the 2013 Kiobel decision.
  • A private Members’ Bill has been introduced in the U.K. Parliament that would apply the transparency provisions of the U.K. Modern Slavery Act to government entities. Passage of the proposed legislation would require government agencies to publish modern slavery act statements and would also require contracting agencies to modify their procurement programs to exclude companies that have not published a statement. The bill had its second reading before the House of Commons on January 13.
  • On January 13, President Obama issued an Executive Order lifting most trade sanctions on Sudan as of July 12, 2017, if the Government of Sudan “sustains positive actions it has taken over the last 6 months.” Those actions include a decrease in offensive military activity, greater provision of access to humanitarian organizations, and cooperation with the U.S. Government on counterterrorism activities. As a result of the lifting of sanctions, all transactions by U.S. persons with regard to oil development in Sudan that were previously prohibited will be authorized.

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