Day 4: 10th session of the IGWG elaborating a legally binding instrument on business and human rights
Business & Human Rights Resource Centre
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Welcome to our recap of yesterday's discussions at the 10th session of negotiations on the binding treaty. We kicked off with discussion on Article 8 – Legal liability, followed by negotiations on Articles 9-11: jurisdiction, statute of limitations and applicable law.
Morning session
On the fourth day of the 10th session of the Open-Ended Intergovernmental Working Group, discussions continued on Article 8 – Legal liability, followed by negotiations on Article 9 – Jurisdiction.
Mexico and the US emphasised the need for clear, simple language in Article 8 to encourage states to adopt the LBI. Some CSOs (such as CETIM) argued that the current wording may weaken the treaty’s goals due to legal inaccuracies.
The US suggested adding the phrase “and consistent with domestic legal and administrative systems” to 8(1), a proposal criticised by several CSOs for limiting the effectiveness of these provisions, potentially restricting access to justice.
CSOs highlighted the importance of a strong legal liability provision to hold companies accountable. They generally welcomed Palestine’s proposal to introduce a new paragraph 8(7) and argued it should explicitly cite the joint and several liability doctrine. Palestine proposed that the article should state that conducting human rights due diligence does not automatically protect a business or individual, especially those involved in transnational activities, from responsibility for causing or contributing to human rights abuses or violations, or for failing to prevent such abuses by others.
The legal experts then offered a preliminary reflection on the questions from France and Colombia regarding the extent to which protection of the environment should be considered in relation to the LBI. The experts argued that evidence of opinio juris and recognition of the right to a clean, healthy and sustainable environment by the UN General Assembly in Resolution 76/300 reflect widespread and international acknowledgment of this right as a human right.
On Article 9 - Jurisdiction, one CSO proposed to include “produced effects” to 9(1)(a) and suggested reinstating the place of nationality as place of jurisdiction in 9(1)(d) to better protect migrant workers' rights.
Palestine and Mexico proposed to incorporate amended provisions to Article 9 from the third revised draft, specifically revisions under 9(4) bis, ter, and quater, to, inter alia, include forum necessitatis. CSOs also strongly advocated reinstating the third revised draft's original wording that provided broader criteria for jurisdiction, including avoid imposing the doctrine of forum non conveniens, to ensure sufficient access to justice. The International Organisation of Employers warned “the vast jurisdictional provisions” could lead to forum shopping. The UK also expressed concerns about overlapping litigation and high administrative costs. Ghana proposed clarifying that State Parties must maintain a database of judicial proceedings to address this issue in 9(4)(b). Panama questioned how digital businesses would be addressed under Article 9.
The recording of the morning session is available on UN TV here.
Afternoon session
In the afternoon, states finished discussing Article 9. Countries continued expressing their preference for the phrase “judicial or non-judicial mechanisms” or “authorities” to replace “State agencies”, with Mexico, the US and the UK preferring the former and Brazil and South Africa the latter.
States then began reviewing Article 10 - Statute of limitations. There was widespread disapproval of the term “most serious crimes” found in Article 10.1. The UK, Panama, Russia, Ghana and CSOs cautioned that this phrase should be changed because it lacks a clear legal definition and could be applied too broadly.
Countries subsequently turned to Article 11 - Applicable law. As with other articles, Brazil proposed adding “affected persons and communities” after “victims” in 11.2. This suggestion was endorsed by Ghana, Cameroon, Colombia, Mexico and Palestine. Organisations representing businesses requested this Article be removed in its entirety, over concerns about domestic courts applying foreign law and forum shopping by plaintiffs.
States concluded the session by discussing the roadmap for further negotiations in 2025, including five thematic consultations with various clusters of articles to be discussed at each consultation. The EU, South Africa and CSOs proposed merging upcoming consultative sessions to allow broader participation. The UK and US want to clarify the role of legal experts in the treaty process.
The recording of the morning session is available on UN TV here.