Transnational tort and access to remedy under the UNGPs: Case studies and global developments

The UN Guiding Principles on Business and Human Rights (‘UNGPs’) set out a tripartite framework outlining the human rights obligations of states and responsibilities of business. However, until recently, little attention has been paid to the third pillar of the framework that deals with access to remedy for victims of business-related human rights abuse. Renewed focus on access to remedy has drawn attention back to jurisdictions that have developed a body of jurisprudence, which, to varying degrees, will allow domestic courts to accept jurisdiction over claims where extraterritorial human rights violations are framed as civil suits and brought against a corporate actor in its home jurisdiction. We are seeing an increasing number of these cases being brought in jurisdictions including the UK, Australia, Germany, the Netherlands and Canada. What these cases make clear is that although transnational human rights litigation remains a critical avenue for obtaining remedy for breaches of human rights standards engaged in by corporate actors, without the fulfilment of the state duty to protect human rights enshrined in the UNGPs, such claims are seldom capable of providing effective remedy.

Gabrielle Holly is a business and human rights specialist and an experienced commercial disputes practitioner having practiced for many years at Magic Circle firms in Australia and the UK. She is currently employed at Omnia Strategy LLP, where her practice focuses on business and human rights and public international law, advising companies and states on their obligations under international legal frameworks. Before joining Omnia, Gabrielle was a researcher in business and human rights at the British Institute of International and Comparative Law where she undertook comprehensive research and authored reports and academic articles on human rights due diligence in supply chains, conflicts between international human rights standards and national laws and the role of transnational tort in providing access to remedy under the UN Guiding Principles on Business and Human Rights. As a practitioner, Gabrielle has advised on business and human rights issues, including advising multinationals in the extractive and commodities industries on legal exposure arising from their extraterritorial activities, on the implementation of voluntary human rights frameworks such as the UN Guiding Principles and the Voluntary Principles on Security and Human Rights, and assisting companies to undertake human rights due diligence. She has recently acted for the CORE Coalition and the ICJ in their successful intervention in the Supreme Court appeal in Vedanta Resources PLC and anor v Lungowe and ors (UKSC 2017/0185). Gabrielle is an Australian qualified lawyer and holds a Master of Laws with Distinction from the London School of Economics and Political Science and a combined Bachelor of Laws/Bachelor of Arts with Honours from the University of Western Australia.