Canada: Consultations Open On The UN "Zero Draft" Treaty On Business And Human Rights

There is currently a short window of opportunity to provide input on the UN's zero draft of a Legally Binding Instrument to Regulate, in International Human rights Law, the Activities of Transnational Corporations and Other Business Enterprises (the Zero Draft). This treaty could have far-reaching implications for Canadian businesses involved in transnational activities.

The UN Human Rights Council's Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights (the Working Group) released a report on February 6, 2019, summarizing the fourth session of negotiations on the Zero Draft. The Zero Draft is an attempt to build off the 2011 UN Guiding Principles on Business and Human Rights (UNGPs) by creating a legally binding set of business and human rights obligations for states and corporations with transnational activities. 

States and other relevant stakeholders, including businesses, are encouraged to submit their comments and proposals on the Zero Draft to the Working Group secretariat at no later than February 28, 2019.

About the Zero Draft negotiations

The current drafting process has been guided by the UN Office of the High Commissioner for Human Rights, state representatives, civil society groups and industry stakeholders. While Canada has not participated in the process, several other OECD countries, including France, Germany and the UK, have attended and contributed to the discussions. 

The first and second sessions of the Working Group in 2014 and 2016 were dedicated to deliberations on the content, scope, nature and form of a future treaty. At the third session in 2017, the Working Group discussed the elements to be included in a draft legally binding instrument. Following these consultations, the Zero Draft and optional protocol were published on July 16, 2018. 

The fourth session took place in October 2018 in Geneva, using the Zero Draft as a basis for starting the second phase of negotiation.  Significant time was spent discussing the creation of an international victims' compensation fund, and the interplay of domestic, regional and international legal liability. Some stakeholders raised concerns about the scope of "transnational activities," arguing the treaty should be binding on all corporations and state-owned enterprises. 

However, the Zero Draft recognizes that states hold the primary responsibility regarding human rights. On the other hand, many stakeholders agreed that prevention through human rights due diligence (HRDD) was a key part of the Zero Draft. 

Participants agreed to continue negotiations and consultations toward a viable binding international treaty on business and human rights and to schedule a fifth working group session in late 2019. 

The Zero Draft's provisions: building on the UNGPs

Below is a summary of the articles as currently drafted and discussed at the fourth session:

  • Transnational corporate activities: The scope of "business activities of a transnational character" under Article 4 includes any for-profit economic activity, including electronic, undertaken by natural or legal persons in two or more jurisdictions.  
  • Human rights: These are expanded to include environmental rights, in an effort to reflect the UN's 2030 sustainable development goals.
  • Victims and access to justice
    • "Victim" is given a broad definition, encompassing both individuals or collectives alleged to have suffered harm from transnational business activity. Family or dependents also have standing to bring a claim, as do individuals intervening to prevent victimization. 
    • Victims can choose the jurisdiction of an action as based on the location where an act or omission occurred, or the court of the state where the person(s) alleged to commit the violation are domiciled. Article 7 also applies the law of the forum to the substantive and procedural aspects of an action, including that state's conflict of law rules. 
    • Article 8 sets out extensive requirements for states to provide access to justice. It envisions a domestic complaints process and enforcement mechanism, and would require states to participate in an international fund for victims to provide legal and financial relief to victims. 
  • State duties: States' duty to prevent violations is greatly expanded in Article 9. States would also have to ensure future trade and investment agreements do not conflict with the treaty's implementation, and that existing agreements are interpreted in a way that does not restrict a state's ability to meet its treaty obligations. There is also a mutual assistance and enforcement provision.
  • Human rights due diligence: States would be obliged to introduce legislation requiring mandatory HRDD for persons within their jurisdiction or control that carry on transnational business activities. Companies would be required to monitor, identify, assess, prevent and report on actual or potential human rights and environmental impacts, including a duty to meaningfully consult with at-risk groups such as indigenous peoples. An option is given to states to impose a lower burden on SMEs. 
  • Criminal and Civil liability: Article 10 imposes both corporate criminal and civil liability for human rights breaches and requires state parties to pass domestic laws that reflect international crimes without a limitations period. Civil liability in a value chain would be based on the corporation's control or relationship with a supplier and the foreseeability of the human rights impact. 


Although it is far from being a final document, and still has many difficult legal issues to overcome, such as jurisdiction and renvoi, the Zero Draft process has potentially radical consequences for states and companies engaging in transnational activity. If completed, the treaty will be legally binding upon states who sign and ratify it, which is a significant departure from the UNGPs. It also contains novel propositions that go beyond what many domestic laws already provide, and imposes an obligation on states to pass far-reaching supply-chain due diligence legislation akin to France's "Duty of Vigilance" law, and goes beyond the modern slavery legislation already in force in California, the UK and Australia. 

The Zero Draft follows a growing global trend toward enforcing human rights obligations against businesses operating transnationally. The fourth session report indicates that many stakeholders want a legally binding instrument to ensure that human rights enjoy primacy over trade and investment agreements, although few companies have been included in the consultations. Canadian companies engaged in international activities may want to consider responding to the current consultation, which is a rare opportunity to provide input into the UN business and human rights process. We would be pleased to assist any clients or trade associations who are interested in preparing submissions.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions