The revised draft of an international treaty on the issue of business and human rights, released on 16 July 2019, represents a huge step forward in relation to the so-called “zero draft” published in 2018.  The revised draft makes crucial choices that may constitute a turning point in the process. One significant change is the definition of the scope of the proposed treaty, which has been expanded to encompass all business enterprises, while still having a heightened focus on businesses with transnational activities.  

Article 6 in itself represents a major development in the area of legal liability for business enterprises. The article aims at promoting a “comprehensive” system of legal liability for human rights abuses committed by business enterprises or with their participation.

Article 6.6 posits a standard of legal responsibility of one company in relation to the harm caused by another company, no matter where the latter is located, when the former company controls or supervises the activities that caused the harm. This norm that would potentially cover the responsibility of parent companies in relation to subsidiaries’ wrongs, and similar situations, is seemingly limited by the reference to the “contractual relationship” between the two companies involved. 

Article 6.7 refers to the legal responsibility of business legal persons for some of the atrocities commonly known as crimes under international law. In this context, the new revised draft treaty proposes a flexible approach to give States the choice between criminal, civil or administrative liability even for the most serious crimes. Practice shows that in the implementation of this flexible approach States tend to enact criminal liability or an equivalent form when serious offences are at stake, or at least, to apply the most severe sanctions against the culprits, to reflect the serious nature of the offence committed. 

Article 6 will surely generate some controversy in relation to the list of offences included, their definitions, or even the convenience of having a separate provision for serious offences . . . It will also be useful to guide States that already recognize the criminal liability of legal entities, such as business corporations, to expand the list of criminal offences attributable to those entities. . . In this regard, this treaty provides a minimum threshold, and each State may decide on the upper limits of its laws.